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FORMS 


OF 


CIVIL  PROCEDURE 


A.DAPTED    TO    PRACTICE   AND    PLEADING    UNDER    THE    CODE 

OF   CIVIL    PROCEDURE    OF    THE    STATE   OF   NEW 

YORK,    AND    UNDER    THE   CODES    OP 

OTHER   STATES    HAVING 

SIMILAR  CODES, 

WITH  FULL  NOTES  AND  REFERENCES  TO  AUTHORITIES. 


By  WILLIAM   LANSING 


COtlNSELOR-AT-LAW. 


Volume  II. 

REVISED  EDITION  OF  1896. 


NEW  YORK 

THE  BANKS  LAW  PUBLISHING  00. 

21  Murray  Street 
1904 


LZBH  f 


Bintered  according  to  act  of  Congress,  in  the  year  one  thousand  eight  hundred 

and  eighty-five,  by 

BANKS  &  BROTHERS. 
In  the  office  of  the  Librarian  of  Congress,  at  Washington. 

Entered  according  to  act  of  Congress,  in  the  year  one  thousand  eight  hundred 

and  ninety-six, 

BANKS  &  BROTHERS, 

in  the  office  of  the  Librarian  of  Congress,  at  Washington. 


FORMS  OF  CIVIL  PROCEDURE. 

CONTENTS  OF  VOLUME  n. 


CHAPTER  XV. 

FORMS  RELATING  TO  SPECIAL  PROVISION'S  OF  CHAPTER  FIF- 
TEEN OF  THE  CODE  OF  CIVIL  PROCEDURE,  REGULATING 
PARTICULAR  ACTIONS  AND  RIGHTS  OF  ACTION  AND  AC- 
TIONS BY  AND  AGAINST  PARTICULAR  PARTIES. 

TITLE      I.  Forms  relating  to  matrimonial  actions. 

TITLE    II.  Forms  relating  to  actions  relating  to  corporations. 

TITLE  III.  Forms  relating  to  actions  relating  to  the  estate  of  a  decedent. 

TITLE  IV.  Forms  relating  to  other  special  actions  and  rights  of  action. 

TITLE    V.  Forms  relating  to  other  actions  by  or  against  particular  parties. 

TITLE  I. 

Forms  relating  to  matrimonial  actions. 

Article  First. 

Forms  relating  to  actions  to  annul  a  void  or  voidable  marriage. 

(Code  Civ.  Pro.,  Ch.  16,  Tit.  1,  Art.  1.) 

No.  790.     Complaint  in  action  by  woman  to  declare  marriage  contract  void, 
entered  into  by  her  when  under  age  of  fourteen  years. 

791.  Complaint  in  action  to  annul  a  marriage  contracted  by  party  under 

age  of  legal  consent. 

792.  Complaint  in  action  to  annul  marriage  on  the  ground  that  former 

husband  or  wife  was  living. 

793.  Complaint  in  action  to  annul  marriage  of  idiot. 

794.  Complaint  by  lunatic,  at  time  of  marriage,  to  annul  marriage  after 

resloration  to  sound  mind. 

795.  Complaint  by  relative  of  lunatic  to  annul  marriage  on  the  ground  of 

lunacy. 

796.  Complaint  in  action  to  annul  marriage  on  ground  of  fraud  in  obtain- 

ing consent. 

797.  Complaint  in  action  to  annul  marriage  on  ground  of  physical  inca- 

pacity. 

798.  Aflidavit  to  obtain  order  of  reference  in  suit  to  annul  marriage  on 

the  grmmd  of  non-age. 

799.  Affidavit  for  reference  in  suit  to  annul  marriage  on  the  gnnnid  that 

consent  was  obtained  by  force,  fraud  or  diiress. 

800.  Affidavit  for  reference  in  suit  to  annul  marriage   on  ground  of 

lunacy. 

801.  Order  of  reference  in  action  to  annul  marriage. 


77GSf;H 


iv  Contents. 

No.  803.     Order  of  reference  in  ivction  to  dissolve  marriage  on  ground  of  physi- 
cal incapacity. 

803.  Keport  ot  referee  in  action  to  annul  nuuriage. 

804.  Final  judgment  in  action  to  annul  marriage  on  ground  of  uou  age, 

lunacy  or  idiocy. 

805.  Petition  for  appointment  of  next  frienil  for  infant,  idiot  or  lunatic 

806.  Order  appointing  next  friend  to  bring  such  action. 

Akticle  Second. 

Jfhrms  relating  to  action  for  a  divoi'ce. 

(Code  Civ.  Pro.,  Ch    15,  Tit.  1,  Art.  2.) 

No.  807.  Complaint  in  action  to  dissolve  marriage  contract. 

808.  Answer  in  suit  for  dissolution  of  maniage  contract. 

809.  Order  of  reference  in  suit  to  dissolve  marriage. 

810.  Referee's  report  in  action  to  dissolve  marriage. 

811.  Final  judgment  dissolving  marriage  on  default  of  the  defendant,  or 

where  the  answer  does  not  deny  the  adultery. 

812.  Final  judgment  dissolving  marriage  after  the  trial  of  a  feigned  issue. 

Article  Third. 
Forms  relating  to  action  for  a  separation. 
(Code  Civ.  Pro.,  Ch.  15,  Tit.  1,  Art.  3.) 

No.  813.  Complaint  in  action  for  a  separation. 

814.  Order  of  reference  in  action  for  a  separation. 

815.  Referee's  report  in  action  for  separation. 

816.  Final  judgment  in  action  for  separation. 

817.  Petition  by  parties  to  action  for  revocation  of  judgment. 

818.  Order  revoking  judgment  of  separation,  pursuant  to  joint  applica 

tion  of  the  parties. 

Article  Fourth. 

Forms  relating  to  general  provisions  of  Code  of  Civil  procedure  in  reference  to  mat- 

nmonial  actions. 

(Code  Civ.  Pro.,  Ch.  15,  Tit.  1,  Art.  4.) 

No.  819.  Petition  for  alimonj'^  and  expenses  in  action  for  divorce  or  separation. 

820.  Order  of  reference  as  to  alimony  and  expenses. 

821.  Report  of  referee  as  to  alimony,  etc. 

822.  Order  awarding  alimony,  etc. ,  on  report  of  referee. 

823.  Affidavit  on  application  for  leave  to  marry  again. 

824.  Order  modifying  judgment  so  as  to  allow  marriage  of  defendant. 

825.  Notice  of  application  for  sequestration  of  property  and  appointment 

of  receiver. 

826.  Affidavit  to  obtain  sequestration  of  propertj^  on  failure  to  comply 

with  order  or  judgment  directing  payment  of  alimony,  etc. 

827.  Order  sequestrating  propertj^  of  defendant  and  appointing  receiver. 

828.  Indorsement  on  summons  in  matrimonial  actions  where  complaint 

is  not  served. 


Contents.  t 

No.  829.  AflSdavit  of  service  of  summons  within  the  State,  or  of  the  sum- 
mons and  complaint  without  the  State,  in  suit  for  divorce  or  sepa- 
ration, or  to  annul  a  marriage. 

830.  Affidavit  to  move  for  order  to  show  cause  why  husband  should  not 

make  payment  of  alimony. 

831.  Order  to  show  cause  why  the  defendant  should  not  be  punished  for 

his  failure  to  make  the  payment. 


TITLE  II. 
Forma  relating  to  actions  relating  to  a  corporation. 

Article  First. 

Forms  relating  to  action  by  a  corporation,  and  action  against  a  corporation  to 
recover  damages  or  property. 

(Code  Civ.  Pro.,  Ch.  15,  Tit.  2,  Art.  1.) 

No.  832.     Allegations  of  incorporation  in  complaint  in  action  by  or  against  a 
corporation. 
833.     Order  to  be  served  with  answer  or  demurrer  in  action  against  cor- 
poration upon  promissory  note,  or  other  e\^dence  of  debt. 

Article  Second. 

Forma  relating  to  actions  to  procure  the  dissolution  of  a  corporation,  and  actions  to 
enforce  the  individual  liability  of  the  officers  or  members  of  a  corporation,  with  or 
without  a  dissolution  thereof. 

(Code  Civ.  Pro.,  Ch.  15,  Tit.  2,  Art.  8.) 

No.  834.     Complaint  by  creditor  of  corporation  for  sequestration  of  propertj, 
etc.,  after  return  of  execution  unsatisfied. 

835.  Complaint  in  suit  by  creditor  or  stockholder  after  demand  upon 

attorney -general  to  commence  the  action. 

836.  Final  judgment  in  action  for  dissolution  of  a  corporation. 

Article  Third. 

Forms  relating  to  action  by  the  people  to  annul  a  corporation. 

(Code  Civ.  Pro.,  Ch.  15,  Tit.  2,  Art.  4.) 

No.  837.     Complaint  in  action  by  attorney-general  to  vacate  act  of  incorpo- 
ration. 

838.  Complaint  in  action  to  annul  charter  of  corporation,  under  section 

1798  of  Code  of  Civil  Procedure. 

839.  Injunction  order  rcsfrainiiig  corporation  and  the  officers,  etc.,  from 

exercising  corporate  rights,  etc. 


vi  Contents. 

Akticle  Fourth. 

Forms  relating  to  two  or  more  of  the  actions  iqiecified  in  title  two  of  chapter  fifteen 
of  tlie  Code  of  OiviL  Procedure. 

(Code  Civ.  Pro.,  Ch.  15,  Tit.  2,  Art.  5.) 

No.  840.     Injunction  order  restruiuing  creditors  of  corporation  from  bringing 
actions,  or  from  taking  further  proceedings  in  actions. 

841.  Order  requiring  creditors  of  corporation  to  exhibit  and  prove  their 

claims. 

842.  Notice  by  referee  to  creditors  of  corporation  to  present  and  prove 

their  claims. 
848.     Notice  of  application  for  injunction  against  corporation  or  officer 

thereof. 
844.     Notice  of  motion  for  appointment  of  receiver  of  corporation. 


TITLE  III. 
Forms  relating  to  actions  relating  to  the  estate  of  a  decedent. 

Akticle  First. 

Forms  relating  to  actions  by  or  against  an  executor  or  administrator. 

(Code  Civ.  Pro.,  Ch.  15,  Tit.  3,  Art.  1.) 

No.  845.     Complaint  in  action  by  or  against  executor  or  administrator. 

846.  Complaint  against  executor  or  administrator  for  legacy  or  distribu- 

tive share. 

847.  Bond  by  guardian  fid  litem  to  infant  where  suit  is  brought  for 

legacy,  etc. 

848.  Affidavit  to  obtain  order  from  surrogate  to  issue  execution  against 

an  executor  or  administrator. 

849.  Notice  to  executor  or  administrator  of  application  for  leave  to  issue 

execution  on  judgment  against  him. 

850.  Order  permitting  execution  to  issue  against  an  executor  or  adminis- 

trator on  judgment  against  him. 

851.  Undertaking  required  from  legatee  before  issuing  of  execution  upon 

judgment  against  executor. 

Article  Second. 

Forma  relating  to  action  by  a  creditor  against  his  debtor's  next  of  kin,  legatee,  heir 

or  devisee. 

(Code  Civ.  Pro.,  Ch.  15,  Tit.  3,  Art.  2.) 

No.  852.     Complaint  in  action   against  next  of  kin  or  legatee  for  debt  of 
decedent. 

853.  Complaint  in  action  against  heirs  or  devisees  for  debt  of  intestate  or 

testator. 

854.  Answer  by  heir  or  devisee  of  nothing  received  by  descent  or  devise. 

855.  Final  judgment  in  action  for  recovery  from  heir  or  devisee  of  debt 

of  decedent. 


Contents.  vii 

Akticle  Third. 

Fbrms  relating  to  action  to  establish  or  impeach  a  wSL 

(Code  Civ.  Pro.,  Ch.  15,  Tit.  3,  Art.  3.) 

No   856.     Complaint,  under  subd.  1  of  section  1861,  Code  Civil  Procedure,  in 
action  to  establish  will. 

857.  Complaint,  under  subd.  2  of  section  1861,  Code  Civil  Procedure,  ia 

action  to  establish  will. 

858.  Final  judgment  that  will  be  established. 


TITLE   IV. 
Pbrmi  relating  to  other  special  actions  and  rights  of  aeUon, 

Akticlk  First. 

Forms  relating  to  judgment  creditor's  action. 

(Code  Civ.  Pro.,  Ch.  15,  Tit.  4,  Art.  1.) 

859.  Complaint  in  actions  by  judgment  creditor. 

860.  Complaint  by  judgment  creditor  in  action  to  set  aside  a  chattd 

mortgage  given  by  corporation  in  contemplation  of  insolvency. 

861.  Complaint  against  judgment   debtor  and  his  tnastee  to  reach  the 

trust  fund  or  the  income  thereof. 

862.  Complaint  against  judgment  debtor  and  his  assignee  to  set  aside 

assignment. 

863.  Complaint  against  judgment  debtor  to  set  aside  a  fraudulent  judg- 

ment and  sale. 

864.  Final  judgment  in  judgment  creditor's  action. 

865.  Final  judgment  in  judgment  creditor's  action  setting  aside  and  de- 

claring void  a  fraudulent  incumbrance. 

866.  Final  judgment    in    action    by  judgment  creditor,    setting   aside 

fraudulent  conveyance. 

867.  Final  judgment  in  judgment  creditor's  action  dismissing  complaint, 

with  costs  to  be  set  off. 

868.  Petition  by  judgment  creditor  for  leave  to  come  in  as  a  party  to 

creditor's  action. 

869.  Order  granting  petition  for  leave  to  come  in  as  a  party  to  creditor's 

suit. 

870.  Notice  of  application  for  injunction  order  and  order  to  .show  cause 

against  injunction  on  creditor's  complaint. 

871.  Same  as  last  form,  with  clause  for  appointment  of  receiver. 

872.  Injunction  order  in  action  by  judgment  creditor. 

873.  Ord(!r  f)f  reference  to  appoint  receiver  in  judgment  creditor's  action. 

874.  Bond  of  receiver  in  judgment  creditor's  action. 

875.  Order  appointing  referee  to  take  examination  of  judgment  debtor, 

and  tf)  direct  assignment  and  delivery  of  his  property,  and  con- 
veyance of  his  real  estate. 

876.  Assignment  to  receiver  in  creditor's  suit. 


viii  Contents. 

No.  877.  Notice  of  motion  for  leave  to  make  a  supplemental  complaint  in 
judgment  creditor's  action. 

878.  Atfidavit  on  motion  for  leave  to  make  supplemental  complaint  in 

judgment  cntditor's  action. 

879.  Order  gran-ting  leave  to  make  supplemental  complaint  in  judgment 

creditor's  action. 

880.  Supplemental  romiilaint  in  judgment  creditor's  action. 

Article  Second. 

Forms  relating  to  action  by  a  priraie  person  vpon  an  official  bond. 

(Code  Civ.  Pro.,  (^i.  15,  Tit.  4,  Art.  2.) 

No.  881.     Affidavit  on  application  for  leave  to  prosecute  sheriff's  official  bond. 

882.  Order  granting  leave  to  prosecute  sheriff's  bond. 

883.  Indorsement   upon  execution  issued  upon  a  judgment   recovered 

upon  sheriff's  bond. 

884.  Complaint  in  action  upon  sheriff's  bond. 

885.  Answer  under  section  1884  of  Code  of  Civil  Procedure  by  surety 

upon  sheriff's  bond. 

886.  Affidavit  to  move  for  ratable  distribution  of  moneys  collected  out  of 

sureties  in  sheriff's  bond. 

887.  Notice  of  motion  for  ratable  distribution  of  moneys  collected  from 

sureties  in  sheriff's  bond. 

888.  Order  directing   ratable   distribution,   or   of   reference   upon   such 

motion. 

Article  Third. 

Forms  relating  to  action  by  a  private  person  for  a  penalty  or  forfeiture. 

(Code  Civ.  Pro.,  Ch.  15,  Tit.  4,  Art.  3.) 

No.  889.  Complaint  in  action  for  penalty  and  damages,  given  by  section  1436 
of  Code  Civil  Procedure,  against  a  sheriff,  for  selling  real  estate 
contrary  to  chapter  13  of  Code  Civil  Procedure. 

890.  Complaint  in  action  for  penalty  given  by  statute,  to  any  person  who 

sues  therefor. 

891.  Indorsement  upon  summons  in  action  ti)  recover  penalt)'  or  for- 

feiture, where  complaint  is  not  served. 

Article  Fourth. 

Forms  relating  to  certain  actions  to  recover  damages  for  wrongs. 

(Code  Civ.  Pro.,  Ch.  15,  Tit.  4,  Art.  4.) 

No.  892.  Complaint  for  suing  vexatiously  in  the  name  of  another  or  of  un- 
known person. 

893.  Complaint  in  action  for  causing  death  by  negligence. 

894.  Complaint  for  negligence  causing  death— another  form. 

895.  Answer  to  complaint  (form  No.  894>. 

896.  Complaint  in  action  for  injury  caused  by  negligence. 

897.  Complaint  against  carrier  for  negligence  causing  lo.ss  of  box. 

898.  Complaint  for  negligence  in  setting  fire  on  defendant's  land,  so  that 

it  spread  into  plaintiff's  farm  and  destroyed  his  trees,  etc. 


Contents.  ix 

No.  899.     Complaint  for  one  vessel  running  foul  of  another. 

900.  Complaint  against  an  attorney  for  negligently  conducting  a  cause  to 

trial  Without  proper  evidence. 

901.  Complaint  against  attorney  for  negligently  defending  an  action. 

902.  Complaint  against  attorney  for  negligence  in  investigating  title  for 

a  purchase  of  property. 

903.  Same,  for  negligence  in  investigating  title  for  the  purpose  of  a  loan 

thereupon. 

904.  Complaint  against  physician  and  surgeon  for  malpractice. 

905.  Complaint  against  an  inn-keeper  for  negligence. 

906.  Complaint  against  a  bailee  for  negligence. 

907.  Complaint  against  the  owner  of  a  coach  for  negligence  of  himself 

or  of  his  servant  in  driving  the  same  against  the  plaintiff's  coach. 

908.  Complaint  in  action  for  slander  imputing  unchastity  to  a  woman. 

909.  Complaint  in  action  for  slander,  general  form,  for  words  actionable 

in  themselves. 

910.  Statement  of  special  damages  in  complaint  for  slander. 

911.  Complaint  for  slanderous  words  indirectly  accusing  plaintiff  of  a 

specific  offense. 
913.     Complaint  for  slander  where  the  words  are  spoken  ironically. 

913.  Same,  where  it  is  to  be  collected  from  question  and  answer. 

914.  Answer  justifying  a  charge  of  perjury. 

915.  Complaint  for  slandering  a  person  in  his  trade  by  calling  him  a 

rogue,  etc. 

916.  Complaint  in  action  for  slander  of  title. 

917.  Complaint  in  action  for  libel. 

918.  Complaint  for  a  libel  containing  distinct  passages  of  scandalous 

matter. 

919.  Same,  for  libel  in  a  letter. 

920.  Complaint  for  criminal  conversation  with  plaintiff's  wife. 

921.  Complaint  for  debauching  daughter  or  servant  of  plaintiff. 

922.  Complaint  for  .seduction  of  plaintiff's  daughter. 

923.  Complaint  for  harboring  and  concealing  the  plaintiff's  wife. 

924.  Complaint  for  keeping  dog  used  to  bite  mankind. 

925.  Complaint  for  keeping  a  dog  used  to  bite  sheep  or  other  animals. 

926.  Complaint  for  l)reach  of  promise  to  marry. 

927.  Complaint  for  false  imprisonmiiiit. 

928.  Complaint  for  assault  and  batteiy. 

929.  Same  complaint,  another  form. 

930.  Answer  that  plaintiff  committed  first  assault. 

931.  Answer  that  defendant  was  preserving  the  peace. 

932.  Complaint  for  maliciously  suing  plaintiff  six  times  before  a  justice. 

933.  Complaint  for  maliciously  causing  the  indictment  of  the  plaintjff. 

934.  Complaint  for  maliciously  causing  the  arrest  of  the  plaintiff  on  a 

charge  of  stealing. 

935.  Complaint  for  a  fraudulent  concealment  in  the  sale  of  a  horse. 

936.  Complaint  for  a  false  warranty  of  a  horse. 

937.  Complaint  for  a  sale  with  all  faults,  where  fraudulent  means  are 

used  to  prevent  the  purchaser  from  discovering  defects,  etc. 
B 


X  Contents. 

No.  938.     Complaint  for  falsely  ami  fraiululeiuly  affirming  that  he,  the  defend- 
ant, owned  the  hor-se. 

939.  Complaint  fur  falsely  representing  a  lliinl  person  as  tit  to  be  trusted, 

etc. 

940.  Complaint  in  action  for  false  representations  made  to  induce  a  pur- 

chase of  real  estate. 

941.  Complaint  in  action  where  false  representations  have  been  made  to 

induce  credit. 

942.  Complaint  against  sheriff  for  false  return. 

943.  Complaint  against  sheriff  for  not  making  return. 

944.  Complaint  against  sheriff  for  an  escape. 

945.  Same,  where  arrest  has  been  made  under  order  of  arrest,  and  action 

is  brought  after  judgment. 

946.  Same,  on  an  escape  from  custody  under  order  of  arrest,  when  the 

action  is  brought  before  judgment. 

947.  Complaint  for  conversion  of  persoiiid  property.  • 

948.  Same,  in  an  action  brought  by  executor. 

949.  Complaint  for  arresting  a  witness  while  attending  as  such  upon 

subpa'na. 

950.  Complaint  for  manufacturing  caudles  near  a  dwelling-house. 

Article  Fifth. 

Forms  relating  to  miscellaneovs  actions  and  rights  of  action. 

(Code  Civ.  Pro.,  Ch.  15,  Tit.  4,  Art.  5.) 

No.  951.  Complaint  in  action  to  set  aside  security  as  usurious, 

952.  Affidavit  to  apply  for  leave  to  sue  upon  a  judgment. 

953.  Notice  of  motion  for  leave  to  sue  upon  a  judgment. 

954.  Order  granting  leave  to  sue  upon  a  judgment. 

955.  Complaint  in  action  upon  judgment  of  court  cf  record. 

956.  Complaint  on  a  judgment  rendered  by  a  justice  of  the  peace. 

957.  Complaint  on  bond  for  payment  of  money. 

958.  Same,  setting  forth  breaches  of  condition. 

959.  Complaint  on  bond  other  than  for  payment  of  mouej'. 

960.  Complaint  on  bond  to  perform  covenants  in  another  instrument. 

961.  Complaint  on  bond  for  annuity. 

962.  Complaint  by  accommodation  maker  of  note,  who  has  paid  the  same. 

963.  Complaint  by  guarantor  against  original  debtor  after  payment  of 

debt. 

964.  Complaint  on  a  promise  to  save  surety  harmless. 

965.  Complaint  on  a  guaranty. 

966.  Undertaking  in  action  upon  lost  negotiable  paper. 

967.  Complaint  against  maker  of  note. 

968.  Complaint  against  maker  and  indorser  of  note. 

969.  Complaint  on  check  by  payee  against  maker. 

970.  Same,  by  bearer  against  drawer. 

971.  Same,  against  maker  and  indorser. 

972.  Complaint  on  bill  of  exchange  by  drawee  against  acceptor. 

973.  Same.  T)y  indorsee  against  acceptor. 

974.  Same,  by  acceptor  against  drawer. 


Contents.  xi 

No.  975.  Same,  against  acceptor,  drawer  aud  indorser. 

976.  Same,  against  maker  for  non-acceptance. 

977.  Complaint  on  foreign  bill  by  drawer  or  indorser  against  acceptor. 

978.  Same,  by  indorsee  against  drawer. 

979.  Same,  by  indorsee  against  acceptor,  supi-a  prviest. 

980.  Complaint  for  work,  labor  and  services. 

981.  Complaint  for  fees  of  attorney,  etc. 

982.  Complaint  for  bill  of  a  surgeon  or  physician. 

983.  Complaint  for  work,  labor  and  materials  in  building  hoiise- 

984.  Complaint  for  goods  sold  and  delivered. 

985.  Complaint  on  account  .stated. 

986.  Complaint  for  use  and  occupation. 

987.  Complaint  for  money  bad  and  received. 

988.  Complaint  for  money  lent. 

989.  Complaint  on  undertaking  given  on  appeal. 

990.  Complaint  b}^  executor  on  policy  of  life  insurance. 

991.  Complaint  on  policy  of  insurance  of  goods,  etc. 

9?2.  Answer  alleging  non-compliance  with  conditions  of  the  policy. 

8193.  Complaint  against  lessee  for  rent. 

994.  Complaint  for  non-delivery  of  goods  sold. 

995.  Complaint  for  trespass  in  taking  goods. 

996.  Complaint  on  a  covenant  of  quiet  enjoyment  in  a  deed. 

997.  Complaint  on  covenant  of  seisin. 

998.  Complaint  under  civil  damage  act. 

999.  Complaint  against  mechanic  for  doing  his  work  badly. 

1000.  Complaint  for  breach  of  warranty  of  a  horse. 

1001.  Answ^er,  coverture  of  defendant. 

1002.  Answ^er  of  infancy  of  plaintiff  or  defendant. 

1003.  Answer  of  duress. 

1004.  Answer  of  release. 

1005.  Answer  of  payment. 

1006.  Answer  of  accord  and  satisfaction. 

1007.  Answer  of  discharge  under  the  insolvent  act. 

1008.  Answer  of  usury. 

1009.  Answer  of  usury  to  action  by  an  indorser  against  drawer  of  a 

bill,  etc. 

1010.  Answer  that  note  w\ns  given  to  compound  a  felony. 
UOll.  Answer  that  plaintiff  is  not  a  corporation. 

1012.  Answer  that  note  was  given  for  gambling. 

1013.  Answer  of  statute  of  frauds  on  a  guaranty. 

1014.  Answer  of  arbitrament  and  award. 

1015.  Answer  of  judgment  recovered. 

1016.  Answer  claiming  set-off. 


TITLE  V. 

Forms  relating  to  other  actions  by  and  against  particular  parties. 


V 


xii  Contents. 

Article  First. 

Fc^ms  relating  to  action  by  or  against  an  unincorporatfd  association. 
(Code  Civ.  Pro.,  Ch.  15,  Tit.  5,  Art.  1.) 
No.  1017.     Complaint  in  action  by  or  against  association  consisting  of  seven 
or  more  persons. 

1018.  Affidavit  to  move  for  substitution  on  death,  etc.,  of  the  officer  of 

such  association  against  whom  action  is  brought. 

1019.  Notice  of  motion  for  substitution  of  president,  etc.,  of  such  asso- 

ciation. 

1020.  Order  substituting  president,  etc.,  of  such  association. 

1021.  Execution  upon  money  judgment  in  action  against  such  association. 

1022.  Complaint  in  action  against  members  of  such  association. 

Article  Second. 

Forms  rdating  to  actions  by  or  against  certain  county,  town  and  municipal  officers. 

(Code  Civ.  Pro.,  Ch.  15,  Tit.  5,  Art.  2.) 

No.   1023.     Complaint  in  action  by  a  tax-payer  against  a  public  officer,  agent, 
commissioner,  etc.  - 

1024.  Complaint  in  action,  by  town  officer,  under  section  1926,  Code  of 

Civil  Procedure. 

1025.  Proceeding  to  substitute  successor  in  office,  on  death,  etc.,  of  party 

sued  in  official  capacity. 

Article  Third. 

Forms  relating  to  actions  and  rights  of  actions  against  and  between  joint-debtors. 

(Code  Civ.  Pro.,  Ch.  15,  Tit.  5,  Art.  -S.) 

No.  1026.     Judgment  for  money  against  defendants  jointly  indebted,  where 
all  are  not  served. 

1027.  Indorsement  upon  execution  issued  on  judgment  for  money  against 

joint-debtors,  where  all  have  not  been  served. 

1028.  Complaint  in  action  to  charge  defendant  not  personally  summoned. 

1029.  Judgment  in  action  to  charge  defendant  not  personally  summoned. 

1030.  Release  to  joint-debtor  compounding  separately  with  creditor. 

1031.  Release  to  partner  compounding  separately  with  creditor. 

1032.  Statement  by  persons  composing  joint-stock  association  of  mem- 

bers thereof. 

1033.  Complaint  against  partner  not  sued. 

1034.  Order  in  partnership  action  under  section  1947,  Code  of  Civil  Pro- 

cedure. 

1035.  Undertaking  in  partnership  action  on  application  of  members  of 

firm  to  continue  tne  business  pending  the  action. 


Contents.  xiii 


CHAPTER  XVI. 

FOR}fS  RELATING  TO  ACTIONS  IN  BEHALF  OF  THE  PEOPLE, 
AND  SPECIAL  PROCEEDINGS  INSTITUTED  IN  THEIR  BE- 
HALF BY  STATE  WRIT 

TITLE    I.     Forms  relating  to  actions  in  behalf  of  the  people. 

TITLE  II.     Forms  relating  to  special  proceedings  instituted  by  state  writ. 

TITLE  I. 

Article  First. 

Forms  relating  to  action  against  tJie  usurper  of  an  office  or  franchise. 

(Code  Civ.  Pro.,  Ch.  16,  Tit.  1,  Art.  1.) 

No.  1036.     Complaint  in  action  against  person  usurping,  etc.,  public  oflace. 

1037.  Complaint  against  persons  acting  as  a  corporation  without  being 

duly  incorporated,  etc. 

1038.  Affidavit  to  obtain  order  for  delivery  of  books  and  papers. 

1039.  Order  to  show  cause  upon  affidavit  (No.  1038). 

1040.  Affidavit  of  defendant  to  prevent  issuing  of  warrant. 

1041.  Order  discharging  defendant  upon  return  of  order  to  show  cause. 

1042.  "Warrant  on  failure  to  make  affidavit,  etc. 

1042a.    Search  warrant  for  such  books  and  pajiei's  withheld. 

1043.  Complaint  in  action  for  damages,  after  final  judgment  in  action 

against  person  usurping,  etc.,  public  office. 

1044.  Final  judgment  in  action  against  persons  acting  as  a  corporatioD 

without  being  duly  incorporated. 

1045.  Final  judgment  in  action  for  usurping,  etc.,  office. 

Article  Second. 

Forms  relating  to  action  to  racafe  letters  patent. 

(Code  Civ.  Pro.,  Ch.  16,  Tit.  1,  Art.  2.) 

No.  1046.     Complaint  in  action  to  vacate  letters  patent. 

Article  Third. 

Forms  relating  to  actions  by  the  people  foi-  a  fine,  penalty  or  forfeiture,  or  upon  a 

forfeited  recognizance. 

(Code  Civ.  Pro.,  Ch.  16,  Tit.  1,  Art.  3.) 

No.  1047.     Indorsement  upon  summons  in  action  by  attorney -general  or  dis 

trict  attorney  for  forfeiture  or  penalty  to  the  people  of  the  State. 

1048.  Complaint  on  recognizance  after  indictment  found. 

1049.  Complaint  on  recognizance  after  complaint  made  and  before  indict- 

ment found. 

AuTiCLK  Fourth. 

Fdyrms  relating  to  certain  actions  founded  upon  the  spoliation  or  other  misappro- 
priation of  public  property. 
(Code  Civ.  Pro.,  Ch.  16.  Tit.  1,  Art.  4.) 
No.   1050.     Complaint  in  action  for  ])ub]ic  funds  illegally  obtained,  converted, 
etc. 


siv  Contents. 

TITLF  11. 
Forms  relating  to  special  proceedings  instituted  by  State  writ. 

Article  First. 

Forms  relating  to  provisions  applicable  to  two  or  more  State  writt, 

(Code  Civ.  Pro.,  Ch.  16,  Tit.  2,  Art.  1.) 

No.  1051.     Undertaking  on  issuing  habeas  corpus. 

Article  Second. 

Forma  relating  to  the  writ  of  habeas  corpus,  to  bring  up  a  person  to  testify. 

(Code  Civ.  Pro.,  Ch.  16,  Tit.  1,  Art.  2.) 

No.  1052.     Habeas  corpus  to  testify. 

1053.     Affidavit  to  procure  habeas  corpus  to  testify. 

Article  Third. 

Ilbrms  relating  to  th£  writ  of  habeas  corpus,  and  the  icrit  of  certiorari,  to  inquire 
into  tlie  cause  of  detention. 

(Code  Civ.  Pro.,  Ch.  16,  Tit.  2,  Art.  3.) 

No.  1054.  Petition  on  application  for  writ  of  habeas  corpus  or  certiorari  to 
inquire  into  cause  of  detention. 

1055.  Writ  of  habeas  corpus  to  inquire  into  the  cause  of  detention. 

1056.  Writ  of  certiorari  to  inquire  into  «\ause  of  detention. 

1057.  Return  to  writ  of  habeas  corpus  and  certiorari — official. 

1058.  Return  to  writ  of  habeas  corpus  or  certiorari  other  than  official. 

1059.  Attachment  for  not  obeying  writ. 

1060.  Commitment  upon  return  of  warrant. 

lOGl.  Precept  by  judge  to  bring  before  him  the  prisoner. 

1062.  Order  for  discharge  of  prisoner. 

1063.  Order  remanding  prisoner  under  section  2032  of  Code  Civ.  Pro. 

1064.  Order  discharging  or  bailing  prisoner  in  certain  cases  upon  writ  of 

habeas  corpus. 

1065.  Notice  to  person  interested  in  detention,  etc. 

1066.  Denials  by  the  prisoner  of  return,  etc. 

1067.  Order  for  discharge  of  prisoner  or  dismissing  proceedings  where 

certiorari  has  been  issued  on  application  for  habeas  corpus. 

1068.  Order  for  bail  on  return  to  writ  of  certiorari, 

1069.  Recognizance  of  prisoner  for  his  appearance. 

1070.  Judge's   certificate  of  compliance  to  be  made  upon  the  order. 

No.  1068. 

1071.  Attachment  for  not  obeying  final  order  for  discharge. 

1072.  Warrant  to  bring  up  prisoner  about  to  be  removed.  No.  1. 

1073.  Warrant  to  l)ring  up  prisoner  about  to  l)e  removed,  etc.,  No.  2. 

1074.  Notice  of  appeal  from  an  order  refusing  to  grant  writ  of  habeas 

corpus  or  certiorari. 

1075.  Order  admitting  prisoner  to  bail  pending  appeal. 

1076.  Recognizance  of  prisoner  on  appeal  from  final  order  dismissing 

proceedings,  etc.,  on  habeas  corpus,  etc. 


COXTENTS. 


XV 


Aeticle  Fourth. 
Fbrmg  relating  to  tJie  writ  of  mandamus. 
(Code  Civ.  Pro.,  Ch.  16,  Tit.  2,  Art.  4.) 

No.  1077.  AflSdavit  on  application  for  writ  of  mandamus. 

1078.  Order  for  issue  of  writ  of  mandamus. 

1079.  Alternative  writ  of  mandamus. 

1080.  Writ  of  peremptory  mandamus. 

1081.  Notice  of  motion  and  order  to  show  cause  on  application  for  per- 

emptory mandamus. 

1082.  Affidavit  of  service  of  alternative  writ  of  mandamus. 
'1083.     Return  to  alternative  writ  of  mandamus. 

1084.  Demurrer  to  alternative  writ  of  mandamus. 

1085.  Demurrer  to  return  to  alternative  writ  of  mandamus. 

1086.  Notice  of  filing  return  to  alternative  writ  of  mandamus. 

1087.  Notice  of  appeal  from  order  granting  peremj^tory  mandamus,  or 

from  final  order  upon  alternative  mandamus. 

Article  Fifth. 
Forms  relating  to  the  writ  of  prohibition. 
(Code  Civ.  Pro.,  Ch.  16,  Tit.  2,  Art.  5.) 

No.  1088.  Notice  of  motion  for  writ  of  prohibition. 

1089.  Order  that  alternative  writ  of  prohibition  issue. 

1090.  Alternative  writ  of  prohibition. 

1091.  Affidavit  of  service  of  alternative  writ  of  prohibition. 

1092.  Return  to  alternative  writ  of  prohibition. 

1093.  Final  order  awarding  absolute  writ  of  prohibition,  or  against  the 

relator. 

1094.  Absolute  writ  of  prohibition. 

1095.  Notice  of  appeal  from  final  order  in  proceedings  by  writ  of  pro- 

hibition. 

Article  Sixth. 

Forms  relating  to  the  writ  of  assessment  of  damages. 

(Code  Civ.  Pro.,  Ch.  16,  Tit.  2,  Art.  6.) 

No.  1096.  Petition  on  application  for  writ  of  assessment  of  damages. 

1097.  Writ  of  assessment  of  damages. 

1098.  Notice  of  execution  of  writ  of  assessment  of  damages. 

1099.  Oath  to  jurors  on  execution  of  -writ  of  assessment  of  damages. 

1100.  Inquisition  upon  writ  of  assessment  of  damages. 

1101.  Return  of  execution  of  writ  of  assessment  of  damages. 

1102.  Notice  to  owners  and  persons  interested  in  the  property  of  filing 

inquisition,  etc. 

1103.  Order  fonfirming  inquisition. 

1104.  Petition  for  moneys  paid  into  court,  under  writ  of  assessment  of 

damages. 


rvi 


Contents. 


Article  Seventh. 

Fbrms  rdating  to  (hi  writ  of  certioran,  to  review  tlie  determination  of  an  inferior 

tribunal. 

(Code  Civ.  Pro.,  Ch.  16,  Tit.  2,  Art.  7.) 

No.  1105.     Writ  of  certiorari  to  supply  defect  in  record. 

1106.  Affidavit  oa  application  for  writ  of  certiorari  to  review. 

1107.  Notice  of  such  application. 

1108.  Writ  of  certiorari  to  review. 

llOi).     Affidavit  of  service  of  writ  of  certiorari  to  review. 
1110.     Return  to  writ  of  certiorari  to  review. 


CHAPI'ER  XVII. 


FORMS  RELATING    TO   CERTAIN  PROCEEDINGS  INSTITUTED 
WITHOUT  WRIT. 


TITLE  I.  Forms  relating  to  proceedings  relating  to  insolvent  debtors 
and  lo  prisoners. 

TITLE  11.  Forms  relating  to  summary  proceedings  to  recover  the  posses, 
sion  of  real  property. 

TITLE  III.  Forms  relating  to  proceedings  to  punish  a  contempt  of  court, 
other  than  a  criminal  contempt. 

TITLE      IV.     Forms  relating  to  proceedings  to  collect  a  fine. 

TITLE  V.  Forms  relating  to  proceedings  to  discover  the  death  of  a  tenant 
for  life. 

TITLE  VI.  Forms  relating  to  proceedings  for  the  appointment  of  a  com- 
mittee of  the  person  and  the  property  of  a  lunatic,  idiot  or 
habitual  drunkard,  and  to  general  powers  and  duties  of  the 
committee. 

TITLE  VII.  Forms  relating  to  proceedings  for  the  disposition  of  the  real 
property  of  an  infant,  lunatic,  idiot  or  habitual  drunkard. 

TITLE  VIIL     Forms  relating  to  arbitrations. 

TITLE  IX.  Forms  relating  to  proceedings  to  foreclose  a  mortgage  by  ad- 
vertisement. 

TITLE  X.  Forms  relating  to  proceedings  to  change  the  name  of  an  indi- 
vidual. 

TITLE  XI.  Forms  relating  to  proceedings  for  the  voluntary  dissolution  of 
a  corporation. 

TITLE  XII.  Forms  relating  to  proceedings  supplementarj'  to  an  execution 
against  property. 

TITLE  L 

Forms  relating  to  insolvent  debtors  and  to  prisoners. 

Akticle  First. 

Forms  relating  to  proceedings  for  discharge  of  an  insolvent  from  his  debi&, 

(Code  Civ.  Pro.,  Ch.  17,  Tit.  1.  Art.  1.) 

No.  1111.     Petition  for  discharge  of  insolvent  debtor. 


Contents,  xvii 

No.  1113.     Consent  of  creditor  to  discharge,  to  be  annexed  to  petition  with 
affidavit  thereto. 

1113.  Schedule  to  be  annexed  to  petition  of  insolvent  debtor. 

1114.  Affidavit  of  debtor  to  be  annexed  to  his  schedule. 

1115.  Order  to  show  cause  why  petitioner  should  not  be  discharged  from 

his  debts. 

1116.  Affidavit  of  service  of  order  to  show  cause. 

1117.  Affidavit  of  publication  pursuant  to  order. 

1118.  Specification  by  creditor  of  objections,  and  demand  of  jury. 

1119.  Order  directing  trial  by  jury  of  questions  of  fact. 

1120.  Affidavit  to  procure  order  for  petitioner  to  produce  his  non-resident 

wife. 

1121.  Order  requiring  the  petitioner  to  bring  his  wife  before  the  court  as 

a  witness. 

1122.  Order  directing  the  execution  of  an  assignment  by  an  insolvent 

debtor. 

1123.  Assignment  by  debtor  to  trustees  pursuant  to  order. 

1124.  Certificate  of  trustee  that  assignment  has  been  made. 

1125.  Certificate  of  county  clerk  of  recording  of  assignment. 

1126.  Order  granting  discharge  of  insolvent  debtor. 

1127.  Discharge  of  insolvent  debtor. 

1128.  Affidavit  upon  refusal  of  trustee  to  give  certificate,  etc. 

1129.  Order  to  show  cause  upon  affidavit,  No.  1128. 

1130.  (Jrder  upon  return  of  order  to  show  cause,  No.  1129. 

1131.  Affidavit  to  move  for  order  directing  judgment  to  be  cancelled,  etc. 

1132.  Notice  of  application  for  cancellation  and  discharge  of  judgment. 

1133.  Order  for  cancellation  and  discharge  of  judgment. 

Article  Second. 

Forms  relating  to  exemption  from  arrest  oi'  discharge  from  imprisonment  of  an 

insolvent  debtor. 

(Code  Civ.  Pro.,-Ch.  17,  Tit.  1,  Art.  2.) 

No.  1134.  Petition  for  exemption  from  arrest  and  discharge  from  iraprisofl^ 
ment  of  insolvent  debtor. 

1135.  Affidavit  to  be  annexed  to  schedule. 

1136.  Order  to  show  cause  upon  petition,  No.  1134. 

1137.  Order  directing  assignment  by  debtor. 

1138.  Assignment  by  debtor  pursuant  to  order. 

1139.  Order  for  discharge  of  debtor. 

1140.  Exemption  and  discharge  of  debtor. 

Article  Third. 

Pbrms  relating  to  discharr/e  of  an  imprisoned  judgment  debtor  from  imprisontu  nt 

(Code  Civ.  Pro.,  Ch.  17,  Tit.l,  Art.  3.) 

No.  1141.     Petition  for  discharge  of  person  imprisoned  by  virtue  of  an  exe- 
cution. 
1142.     Notice  to  creditors  of  presentation  of  potitioii,  etc. 
114^.     Order  upon  presentation  of  petition 

0 


XViii  CUNTK.NIS. 

No.  1144.  Order  directing  assigoment  by  debtor  imprisoned  under  executioiL 

1145.  Assignment  by  debtor  imprisoned  under  execution. 

1146.  Order  discharging  debtor  imprisoned  under  execution. 

1147.  Notice  by  creditor  to  debtor  to  apply  for  discharge. 

Article  Fourth. 

Ibrms  relating  to  care  of  the  iiroperty  of  a  person  confined  for  crime. 

(Code  Civ.  Pro.,  Ch.  17,  Tit.  1,  Art.  4.) 

No.  1148.     Petition  for  appointment  of  trustees  to  take  charge  of  property  of 
person  imprisoned  for  crime. 

1149.  Order  upon  presentation  of  petition. 

1150.  Order  upon  the  return  of  order  to  show  cause.  No.  1149. 


TITLE  II. 

Forms  relating  to  summary  proceedings  to  recover  the  possession  of  real  property. 

(Code  Civ.  Pro.,  Ch.  17,  Tit.  2.) 

No.  1151.     Petition  bj^  landlord,  etc.,  under  subdivision  1  of  section  2231  of 
Code  Civil  Procedure. 

1152.  Same  petition,  under  subdivision  2  of  section  2231  of  Code  Civil 

Procedure. 

1153.  Same  petition,  under  subdivision  3  of  section  2231  of  Code  Civil 

Procedure. 

1154.  Same  petition,  under  subdivision  4  of  section  2231  of  Code  Civil 

Procedure. 

1155.  Same  petition,  under  subdivision  5  of  section  2231  of  Code  Civil 

Procedure. 

1156.  Notice  to  pay  rent  or  to  surrender  possession  of  premises. 

1157.  Notice  to  pay  taxes  or  assessments,  or  to  surrender  possession  of 

premises. 

1158.  Petition  by  person  entitled  to  possession  of  real  property,  under 

subdivision  1  of  section  2232  of  Code  Civil  Procedure. 

1159.  Sarre  petition,  under  subdivision  2  of  section  2232  of  Code  Civil 

Pr  oedure. 

1160.  Same  petition,  under  subdivision  3  of  section  2232  of  Code  Civil 

Procedure. 

1161.  Same  petition,  under  subdivision  4  of  section  2232  of  Code  Civil 

Procedure. 

1162.  Petition  for  removal  of  a  person  for  forcible  entry  or  detainer. 

1163.  Notice  to  tenant  at  will  or  at  sufferance  to  remove. 

1164.  Notice  in  cases  specified  in  section  2232  of  Code  Civil  Procedure. 

1165.  Notice  to  landlord  or  owner  of  premises  occupied  as  a  bawdy- 

house,  etc. 

1166.  Petition  t^iy  one  in  the  neighborhood  of  bawdy-house,  etc.,  for  re- 

moval of  occupant. 

1167.  Precept  upon  presentation  of  petition. 
1 168      Atlidavit  of  service  of  precept. 


Contents.  xix 

No.  1169.  Answer  to  petition  upon  return  of  the  precept. 

1170.  Final  order  upon  return  of  the  precept  or  upon  trial. 

1171.  Warrant  to  dispossess  tenant,  etc. 

1172.  Return  of  officer  to  warrant. 

1173.  Undertaking  to  effect  stay,  under  subdivision  1  of  section  2254  of 

Code  Civil  Procedure. 

1174.  Same,  under  subdivision  2  of  section  22.54  of  Code  Civil  Procedure. 

1175.  Same,  under  subdivision  3  of  sectioQ  2254  of  Code  Civil  Procedure. 

1176.  Affidavit  to  be  made,  under  subdivision  3  of  section  2254  of  Code 

Civil  Procedure,  to  obtain  stay. 

1177.  Notice  by  creditor  of  lessee  of  his  intention  to  redeem. 

1178.  Petition  of  person  redeeming  premises. 

1179.  Order  to  show  cause  upon  petition.  No.  1178. 

1180.  Final  order  upon  the  return  of  order  to  show  cause,  No.  1179. 

1181.  Notice  of  appeal  from  final  order,  under  title  2  of  chapter  17  of 

Code  Civil  Procedure. 

1182.  Undertaking  on  appeal  from  iinal  order,  under  section  2262  of  Code 

Civil  Procedure. 

1183.  Order  of  reversal  of  final  order. 

1184.  Complaint  in  action  for  recovery  of  damages  sustained  by  dispos- 

session, where  final  order  is  reversed  on  appeal. 


TITLE  III. 


Pbrms  relating  to  proceedings  to  punish  a  contempt  of  court  other  than  a  critninal 

contempt. 

(Code  Civ.  Pro.,  Ch.  17,  Tit.  3.) 

No.  1185.     Affidavit  on  which  to  procure  warrant,  or  order  to  show  cause  in 
contempt  proceedings. 

1186.  Order  for  warrant  for  contempt  of  court  issued  without  notice. 

1187.  Warrant  to  commit  for  contempt  of  court  issued  without  notice. 

1188.  Order  to  show  cause  why  the  accused  should  not  be  punished  for 

the  alleged  offense. 

1189.  Order  directing  warrant  of  attachment  to  issue  for  contempt  of 

court. 

1190.  Warrant  of  attachment  in  proceedings  for  contempt  of  court, 

1191.  Notice  to  sheriff,  etc.,  to  return  execution  or  show  cause,  etc. 

1192.  Proof  of  service  of  notice  to  return  execution. 

1193.  Affidavit  of  delivery  of  execution  to  sheriff. 

1194.  Clerk's  certificate  of  .search  for  execution  and  not  finding  same. 

1195.  Affidavit  of  searcli  for  mandate. 

1196.  Order  upon  decision  of  motion  to  compel  return  of  mandate  by 

sheriff. 

1197.  Undertaking  to  procure  discharge. 

1198.  Affidavit  in  proceedings  for  contempt  where  the  accused  is  in  tl>e 

custody  of  sheriff,  etc. 

1199.  Writ  of  habeas  corpus  in  contempt  procccdinirs. 

1200.  Tectum  to  writ  of  liabeas  corpus  in  contempt  j)rocceding8. 


XX  Contents. 

1201.  Return  to  warrant  of  Httachniiut  in  contempt  proceedings. 

1202.  Order  directing  interrogatories  to  be  tiled. 

1203.  Interrogatories  to  accused  in  contempt  proceedings. 

1204.  Answer  of  accused  to  interrogatories. 

1205.  Order  convincing  defendant  of  the  contempt  charged  and  directing 

his  punishment. 

1206.  Warrant  of  commitment,  pursuant  to  order. 

1207.  Affidavit  to  obtain  release  of  oflender. 

1208.  Notice  of  application  for  discharge  of  oflender. 

1209.  Order  discharging  offender  from  imprisonment. 

1210.  Order  when  accused  does  not  appear. 

1211.  Complaint  on  undertaking  given  for  appearance  of  offender. 


TITLE  IV. 

Forms  relating  to  proceedings  to  collect  a  fine. 

(Code  Civ.  Pro.,  Ch.  17,  Tit.  4.) 

No.  1212.     Warrant  for  collection  of  lines  imposed  by  court  of  record. 


TITLE  V. 

Forms  relating  to  proceedings  to  discover  the  death  of  a  tenant  f<yr  life  of  real 

property. 

(Code  Civ.  Pro.,  Ch.  17,  Tit.  5.) 

No.  1213.  Petition  for  production  of  tenant  for  life  of  real  property. 

1214.  Notice  of  presentation  of  petition. 

1215.  Order  upon  presentation  of  petition. 

1216.  Affidavit  to  procure  writ  of  habeas  corpus  for  prisoner,  etc. 

1217.  Referee's  report  in  these  proceedings. 

1218.  ( irder  dismissing  the  petition  when  the  original  order  has  been 

complied  with. 

1219.  Petition  of  person  evicted   for   restoration  to  possession  of  real 

property. 

1220.  Complaint  in  action  by  person  evicted  under  order  for  rents  and 

profits. 

TITLE  VI. 

,ybmw  relating  to  proceedings  for  the  appointment  of  a  committee  of  the  person  and 
of  the  property  of  a  lunatic,  idiot  or  habitual  drunkard,  and  to  the  general  pow» 
ers  and  duties  of  the  committee. 

(Code  Civ.  Pro  ,  Ch.  17,  Tit.  fi.) 

No.   1221.     Petition  for  appointment  of  committee  of  person  incompetent  to 
manage  himself  or  his  affairs,  in  consequence  of  lunacy,  etc. 

1222.  Affidavit  to  be  annexed  to  petition. 

1223.  Petition  by  overseers  of  the  poor  for  appointment  of  committee. 

1224.  Notice  of  presentation  of  petition. 


CoiMTENTS.  vvi 

No.  1235.  Order  for  commission  or  for  jury  trial. 

1226.  Commission  to  inquire  as  to  lunacy,  etc. 

1227.  Oath  of  commissioners. 

1228.  Precept  to  sheriif  to  summon  jury. 

1229.  Sheriff  s  return  to  precept. 

1230.  Oath  to  jurors. 

1231.  Oath  to  witnesses. 

1232.  Subpoena  for  witnesses. 

1233.  Notice  to  lunatic,  etc.,  of  execution  of  commission. 

1234.  Notice  to  produce  lunatic,  etc. 

1235.  Inquisition. 

1236.  Notice  of  application  to  confirm  finding  of  jury. 

1237.  Final  order  on  return  of  commission. 

1238.  Bond  of  committee. 

1239.  Commission  to  committee. 

1240.  Complaint  in  action  by  committee  of  lunatic,  etc. 

1241.  Complaint  in  action  against  committee. 

1242.  Petition  by  lunatic,   etc.,  discharge  of  committee,  etc.,  on  big 

recovery. 

1243.  Affidavits  annexed  to  petition  for  discharge  of  committee. 

1244.  Order  discharging  committee. 

1245.  Inventory  and  account  of  committee  to  be  rendered  annually. 

1246.  Order  for  inventory  or  account,  or  for  further  inventory,  etc.,  by 

committee. 

TITLE  VII. 

Forms  relating  to  proceMings  for  the  disposition  of  the  real  property  of  an  infant^ 
lunatic,  idiot  or  TioMtual  drunkard. 

(Code  Civ.  Pro.,  Ch.  17,  Tit.  7.) 

No.  1247.     Complaint  in  action  to  compel  infant  or  lunatic,  etc.,  trustee  ta 
convey. 

1248.  Complaint  in  action  to  compel  specific  performance  of  contract  by 

infant,  etc. 

1249.  Order  for  judgment  that  infant,  etc.,  trustee  convey. 

1850:     Order  for  judgment  for  specific  performance  of  contract  by  infant^ 

etc. 
125L     Petition  for  sale  of  real  property  of  infant. 

1252.  Petition  by  committee  of  lunatic,  idiot  or  habitual  drunkard  for 

sale  of  his  real  estate  to  pay  debts. 

1253.  Order  upon  petition  appointing  j-pecial  guardian  of  infant. 

1254.  Bond  of  committee  or  special  guardian. 

12.55.  Order  to  show  cause  why  committee  should  not  file  bond. 

1256.  Order  upon  return  of  order  to  show  cause.  No.  1255. 

1257.  Order  appointing  referee  to  inquire  into  merits  of  application. 
1858.  Referee's  report. 

1259.  Final  order  upon  referee's  report. 

1260.  Report  of  special  guardian  or  committee  of  agreement  to  sell. 

1261.  Order  confirming  guardian's  (etc.)   report,  and  directing  a  con- 

veyance. 


xxii  Contents. 

No.  1262.     Another  form  of  order  of  coafiniiatiou,  where  proceeds  are  retained 
by  guardian,  etc. 

1263.  Another  form  of  order  of  confirmation,  where  the  amount  of  the 

proceeds  exceeds  five  hundred  dolhirs  and  no  real  security  has 
been  given  by  the  guardian. 

1264.  Deed  by  special  guardian,  etc. 

1265.  Release  of  widow's  right  of  dower. 
12G6.     Final  report  of  special  guardian. 

1267.     Order  confirming  final  report  of  special  guardian. 
1368.     Consent  of  owner  of  dower  estate,  etc.,  to  receive  a  gross  sum  in 
satisfaction  thereof. 


TITLE  VIII. 

Forms  reUiting  to  arbitrations. 
(Code  Civ.  Pro.,  Ch.  17,  Tit.  8.) 

jJTo.  1269.  Submission  of  controversies  to  arbitration,  short  general  form. 

1270.  General  submission,  full  form. 

1271.  Special  submission  of  a  controversy. 

1272.  Appointment  by  arbitrators  of  time  and  place  of  hearing,  and 

notice  to  parties. 

1273.  Oaths  of  arbitrators. 

1274.  Subpoena  to  appear  before  arbitrators  as  a  witness. 

1275.  Oath  to  witness  before  arbitrators. 

1276.  Award  by  arbitrators. 

1277.  Award  by  arbitrators,  another  form. 
la78.  Notice  of  motion  to  confirm  award. 

1279.  Order  upon  motion  confirming  award. 

1280.  Notice  of  motion  to  vacate  or  modify  the  award. 

1281.  Order  vacating,  etc..  the  award. 
1282  Judgment  upon  award. 

1283.  Affidavit  in  case  of  the  death  of,  or  the  appointment  of  a  commit* 

tee  for  a  part3%  after  filing  or  delivering  of  the  award. 

1284.  Order  extending  time  within  which  motion  to  vacate,  etc.,  award 

must  be  made. 

1285.  Revocation  of  submission. 

1286.  Notice  to  opposite  party  of  revocation. 

1287.  Complaint  against  a  party  revoking  a  submission  lo  arbitration. 

1288.  Arbitration  bond. 


TITLE  IX. 

Forms  relating  to  proceedings  to  foreclose  a  mortgage  by  advertisement. 

(Code  Civ.  Pro..  Ch.  17,  Tit.  9.) 

No.  1289.  Notice  of  sale  in  foreclosure  by  advertisement. 

1290.  Notice  of  postponement  of  sale. 

1291.  Affidavit  of  sale. 

1292.  Affidavit  of  publication  of  notice  of  sale  and  postponement. 


Contents.  xxiii 

R'o.  1293.  Affidavit  of  affixing  uotice  at  or  near  entrance  to  court  house. 

i294.  Affidavit  of  affixing  copy  of  notice  by  county  clerk,  iu  book  kept 
by  him. 

1295.  Affidavit  of  service  of  notice  of  sale. 

1296.  Note  by  clerk  upon  margin  of  record  of  mortgage. 

1297.  Bill  of  costs  on  foreclosure  by  advertisement. 

1298.  Petition  for  surplus  moneys  arising  upon  sale.   , 

1299.  Notice  of  application  for  !^urplus. 

1300.  Order  of  reference  upon  the  application. 

1301.  Report  of  referee  as  to  pricrity  of  liens,  etc. 

1302.  Order  upon  report  of  referee. 


TITLE  X. 

Forms  relating  to  proceedings  to  change  the  name  of  an  individudL 

(Code  Civ.  Pro.,  Ch.  17,  Tit.  10.) 

No.  1302a.  Petition   by   corporation  for  leave  to  assume  another  corporate 
name. 

1303.  Petition  by  person  of  full  age  for  leave  to  assume  another  name. 

1304.  Order  upon  petition  granting  such  leave,  provided,  etc. 
1304a.  Ordei-  upon  petition  of  a  corporation,  form  No.  1302a. 

1304b.  Notice  of  presentation  of  petition  of  corporation,  form  No.  1304a, 
for  leave  to  assume  another  name. 

1305.  Petition  by  infant  for  change  of  name. 

1306.  Affidavit  of  publication  of  order. 


TITLE  XI. 

Forms  relating  to  the  voluntary  dissolution  of  a  corporation, 

(Code  Civ.  Pro.,  Ch.  17,  Tit.  11.) 

No.  1307.     Petition  by  majority  of  trustees,  etc.,  for  dissolution  of  a  corpora- 
tion. 
1.308.     Petition   for  dissolution  of  corporation  in  case  the  directors,  etc, 
are  equally  divided  respecting  its  management. 

1309.  Order  to  show  cause  on  presentation  of  petition. 

1310.  Schedule  to  be  annexed  to  the  petition. 

1311.  Referee's  report. 

1312.  Notice  of  appearance  to  make  persons  appearing,  parties  to  the  pro- 

ceeding 

1313.  Notice  of  motion  for  final  order 

1314.  Final  order  dissolving  corporation,  etc. 


TITLE  XIL 

Fbrms  relating;/  to  procfeding^  m/pplcmchtary  to  an  execution  against  property 

(Code  Civ.  Pro.,  Ch.  17.  Tit.  12  ) 

Article  First. 

FmfM  relating  to  proceedings  to  compel  an  txamination  of  the  judgment  debtor,  and 

of  his  debtor  or  Ixtilee. 

(Code  Civ.  Pro.,  Ch.  17,  Tit.  1,  Art.  1.) 

No.   1315.     Affidavit  to  obtain  order  to   examine  judgment  (iel»tor  after  return 
of  execution  agauiHt  i)roperly  JHsui-d  out  of  a  court  of  record. 


xxiv  Contents. 

1316.  Affidavit  to  procure  order  for  examination  after  the  issuing  and 

before  tlie  return  of  an  execution 

1317.  Order  for  examination  of  judgment  debtor  after  return  of  •■xeculiou. 

1318.  Affidavit  to  procure  warrant  for  arrest  of  judgment  debtor. 

1319.  AVarrant  for  arrest  of  juiigment  debtor. 

1320.  Undertaking  of  judgment  debtor  to  obtain   bis  discharge  from 

arrest. 

1321.  Warrant  upon  failuie  to  comply  with  the  order  directing  under- 

taking to  be  given. 

1322.  Affidavit  to  obtain  order  for  examination  of  person  or  officer  of 

corporation  having  property,  etc.,  of  judgment  debtor. 

1323.  Order  to  examine  person  having  property,  etc.,  of  judgment  debtor. 
1334.     Referee's  return  pursuant  to  order. 

1325.  Oath  of  referee. 

1326.  Atlidavit  to  obtain  order  permitting  payment  of  debt  to  sheriff. 

1327.  Notice  of  application  for  order  permitting  payment  to  sheriff  by 

person  indebted  to  judgment  debtor. 

1328.  Order  permitting  person  to  pay  debt  to  sheriff. 

1329.  Notice  of  application  for  order  that  debtor  pay  over  money,  etc. 

1330.  Order  requiring  delivery  of  money  or  property  to  sheriff  or  receiver 

by  judgment  debtor. 

1331.  Order  directing  tlie  payment  or  application  of  money  or  property 

by  sheriff. 

1332.  Order  directing  balance,  etc.,  to  be  paid  to  judgment  debtor  in 

certain  cases. 

1333.  Affidavit  of  service  of  injunction  order  and  order  requiring  debtor's 

attendance  for  examination. 

1334.  Sheriff's  return  of  arrest  pursuant  to  warrant. 

1335.  Order  dismissing  or  discontinuing  proceeding. 

1336.  Order  directing  payment  of  costs  to  judgment  creditor. 

1337.  Order  directing  payment  of  costs  to  judgment  debtor, 

1338.  Affidavit  to  obtain  examination  of  judgment  debtor,  etc.,  when 

execution  has  been  issued  pursuant  to  section  1941  of  the  Code  of 
Civil  Procedure. 

Article  Second. 

Forms  relating  to  the  receiver. 

(Code  Civ.  Pre,  Ch.  17,  Tit.  12,  Art.  2.) 

No.  1339.    Notice  of  application  for  appointment  of  receiver. 
1340.    Order  appointing  receiver. 


TITLE  XIII. 


Fbrms  relating  to  proceedings  to  compel  delivery  of  books  and  papers  to  public 

officers. 

(Code  Civ.  Pro.,  Ch.  17,  Tit.  13.) 

No.  1338a.  Complaint  to  compel  delivery  of  books,  etc. 

1338b.  Order  to  show  cause  granted  upon  complaint,  form  No.  1338a. 

133Sc.   Affidavit  of  delivery  of  books,  etc. 

1338d.  Order  discharging  defendant  on  return  of  order  to  show  cause. 

1338e.   Warrant  to  commit  pei-son  withholding. 

1338f.    Search  warrant  for  such  hooks  and  papers  withheld. 


Contents.  xxv 


CHAPTER  XYIII. 

FORMS  RELATING  TO  SURROGATES  COURTS  AND  PROCEEDINGS 

THEREIN. 

(Code  Civ.  Pro.,  Ch.  18.) 

TITLE  I.  Forms  relating  to  the  organization,  jurisdiction  and  powers  of 
the  court;  duties,  powers  and  disabilities  of  the  surrogate  and 
to  miscellaneous  provisions. 

TITLE  II.  Forms  relating  to  provisions  relating  generally  to  the  proceed- 
ings in  surrogates  courts,  and  to  appeals  from  those  courts. 

TITLE  III.  Forms  relating  to  granting  and  revoking  probate;  to  letters  testa" 
mentary  and  letters  of  administration;  to  foreign  wills  and 
ancillarj^  letters. 

TITLE  IV.  Forms  relating  to  proceedings  by  or  against  an  executor  or 
administrator,  touching  the  administration  and  settlement  of 
the  estate. 

TITLE  V.  Forms  relating  to  disposition  of  the  decedent's  real  property,  for 
the  payment  of  debts  and  funeral  expenses,  and  to  distribu- 
tion of  the  proceeds. 

TITLE    VI.     Forms  relating  to  provisions  relating  to  a  testamentary  trustee. 

TITLE  VII.     Forms  relating  to  provisions  relating  to  a  guardian. 


TITLE  I. 

Article  First. 

Fbmu  relating  to  the  jurisdiction  of  the  cmirt  and  authority  of  the  surrogate. 

(Code  Civ.  Pro.,  Ch.  18,  Tit.  1,  Art.  1.) 

No.  1341.     Subpoena  in  surrogate's  court. 

Article  Second. 

Forms  relating  to  ike  general  duties  and  disabilities  of  the  surrogate  or  temporary 

surrogate. 
(Code  Civ.  Pro.,  Ch.  18,  Tit.  1,  Art.  2.) 

No.  1342.     Certificate  of  surrogate  of  his  disqualification  to  act  in  a  particular 
matter. 
1343.     Petition  for  order  of  General  Term  upon  disqualification,  etc.,  of 

sorrogate. 
1844.     Order  of  General  Term  upon  petition  (form  No.  1348). 


TITLE  II. 
Article  First. 

Form*  relating  to  process,  and  sermce  ther&f ;  appearance  and  joinder  of  issue, 
and  miscellaneouK  regulations  of  practice. 
(Code  Civ.  Pro.,  Ch.  18,  Tit.  2,  Art.  1.) 

No.  l-34.'3.     Genera  form  of  cilatioii  i.ssued  by  .surrogate, 
D 


xxvi  Contents. 

No.   1346.     Affidavit  of  personal  service  of  citation. 

1347.  Affidavit  to  procure  order  for  service  of  citation  upon  a  resident  of 

tlie  State  b}'  publication. 

1348.  Order  directing  service  of  citation  on  resident  of  the  State  by  pub- 

lication. 

1349.  Order  for  service  by  publication  in  cases  provided  for  by  sections 

2522.  2533  of  the  Code  of  Civil  Procedure. 
1860.     Affidavit  of  service  of  citation  without  the  State,  and  of  publica- 
tion and  deposit  in  the  post-office. 

1351.  AfEdavit  of  service  of  citation  upon  infant  under  fourteen,  lunatic, 

etc.    or  upon  a  corporation. 

1352.  Order  for  additional  service  in  case  of  infant,  etc. 

1353.  Notice  of  appearance  in  surrogate's  court. 

1354.  Order  appointing  special  guardian  of  infant  or  lunatic,  etc. 

1355.  Consent  of  special  guardian  to  his  appointment. 

1356.  Notice  of  application  for  appointment  of  special  guardian   for 

infant,  etc. 

1357.  Proof  of  service  of  citation,  subpoena,  etc. 

1358.  Verification  of  written  pleadings,  etc.,  in  surrogate's  court. 

Article  Second. 

Forms  relating  to  hearing,  including  trial  hy  jury  and  reference. 

(Code  Civ.  Pro.,  Ch.  18.  Tit.  2,  Art.  2.) 

No.   1359.     Petition  to  surrogate  to  take  examination  of  an  aged,  sick  or  infirm 
witness. 

1360.  Order  for  examination  of  a  witness  in  another  county. 

1361.  Order  appointing  referee  to  take  testimony  of  sick,  etc.,  witness. 

1362.  Return  of  surrogate  of  another  county  of  examination  of  witness 

before  him. 

1363.  Decision  of  surrogate  upon  a  trial  by  him  of  an  issue  of  fact. 
1864.     Notice  of  exceptions  to  surrogate's  decision, 

1365.  Order  appointing  referee  on  accounting, 

1366.  Referee's  report  on  accounting. 

1367.  Order  of  surrogate  for  trial  by  jury. 

Article  Third. 

Forms  relating  to  decrees  and  orders  of  the  surrogate's  court  and  the  enforcement 

thereof. 

(Code, Civ.  Pro.,  Ch.  18,  Tit.  2,  Art.  3,) 

No.  1868.     Transcript  of  surrogate's  decree  directing  payment  of  sum  of 
money. 

1369.  Execution  upon  surrogate's  decree  directing  payment  of  sum  of 

money. 

1370.  Affidavit  in  proceedings  for  contempt,  in  not  obeying  surrogate's 

decree  directing  payment  of  sum  of  money. 
1871.     Affidavit  of  appraisers  as  to  days  occupied,  and  expenses  in  making 
appraisal  and  inventory. 


Contents.  xxvii 

Article  Fourth. 

Forma  relating  to  appeals  from  decree  w  order  of  surrogate's  court. 

(Code  Civ.  Pro.,  Ch.  18,  Tit.  2,  Art.  4.) 

Ne.  1372.     Affidavit  by  person  appealing,  not  a  party  to  the  special  pco«eeding. 

1373.  Notice  of  entry  of  surrogate's,  etc.,  decree,  or  order  to  limit  time 

of  appeal  therefrom. 

1374.  Notice  of  appeal  from  decree  or  order  of  surrogate  or  surrogate's 

court. 

1375.  Undertaking  on  appeal  from  surrogate's,  etc.,  decree  or  order,  in 

cases  under  sections  2577,  2578,  Code  of  Civil  Procedure. 

1376.  Judgment  or  order  upon  appeal  from  surrogate's,  etc.,  decree. 

1377.  Order  awarding  jury  trial  upon  reversal  of  surrogate's  decree  in 

probate  cases. 

Article  Fifth. 

Forma  relating  to  provisions  relating  generally  to  Utters,  and  generally  to  executors, 
administrators,  guardians  and  testamentary  trustees. 

(Code  Civ.  Pro.,  Ch.  18,  Tit.  2,  Art.  5.) 

No.  1378.     Official  oath  of  executor,  admmistrator  or  guardian. 

1379.  Order  directing  deposit  of  security  with  surrogate  or  with  trust 

company. 

1380.  Order  authorizing  withdrawal,  etc.,  of  security  from  county  treas- 

urer or  trust  company  by  executor,  etc. 

1381.  Petition  for  new  bond  or  new  sureties  to  be  given  by  executor,  etc. 

1382.  Order  that  citation  issue  to  executor,  etc.,  to  show  cause  why 

prayer  of  petition  (No.  1381)  should  not  be  granted. 

1383.  Citation  to  executor,  etc.,  to  show  cause  why  the  prayer  of  peti- 

tion (No.  1381)  .should  not  be  granted. 

1384.  Order  upon  return  of  citation  (No.  1383). 

1385.  Decree  after  expiration  of  time  fixed  for  filing  new  bond,  etc., 

allowed  by  order. 

1386.  Petition  of  sureties  in  a  bond  for  their  relief  from  responsibility. 

1387.  Order  that  citation  issue  to  executor,  etc.,  pursuant  to  petition 

(form  No.  1386). 

1388.  Citation  requiring  executor,  etc.,  to  show  cause,  pursuant  to  peti- 

tion (form  No.  1886). 

1389.  Decree  on  return  of  citation  (form  No.  1388). 

1390.  Order  directing  as  to  custody  of  property,  when  co-executors,  etc., 

disagree. 

1391.  Complaint  in  action  upon  official  bond  of  administrator,  etc. 

1392.  Complaint  by  successor  of  administrator,  etc.,  upon  his  official 

bond,  after  revocation  of  letters. 


xxviii  Contents. 

TITLE  III. 

Article  First. 

Forms  relating  to  tJie  probate  (-f  a  icill  and  grant  of  letters  thereon. 

(Code  Civ.  Pro.,  Ch.  18,  Tit.  3,  Art.  1.) 

No.  1393.  Petition  for  the  probate  of  a  will. 

1394.  Order  that  citation  issue  for  probate  of  will. 

1895.  Citation  to  attend  probate  of  a  will. 

1396.  Notice  requiring  the  examination  of  all  the  subscribing  ■witnesses, 

etc.,  to  a  written  will. 

1397.  Answer  to  petition  for  probate  of  will. 

1398.  Deposition  of  subscribing  witnesses  to  will. 

1399.  Proof  of  handwriting  in  case  of  death  or  absence  from  the  State, 

of  either  of  the  subscribing  witnesses. 

1400.  Interrogatories  to  be  annexed  to  commission  for  examination  of 

subscribing  witness  to  will. 

1401.  Proof  of  custody  of  will. 

1402.  Decree  admitting  will  to  probate  and  record. 

1403.  Petition  for  proof  of  lost  or  destroyed  will. 

1404.  Decree  admitting  lost  or  destroyed  will  to  probate. 

1405.  Decree  setting  aside  a  will. 

1406.  Surrogate's  certiflcate  of  probate  of  will. 

1407.  Affidavit  stating  objections  to  granting  letters. 

1408.  Order  that  executor  appear  to  attend  inquiry. 

1409.  Order  that  objector  proceed  with  the  inquiry. 

1410.  Objections  to  issuing  of  letters  to  an  executor  named  in  the  will. 

1411.  Decree  upon  objections. 

1412.  Letters  testamentary  upon  will. 

1413.  Bond  of  executor  or  admmistrator. 

1414.  Renunciation  by  executor. 

1415.  Retraction  of  renunciation  by  executor. 

1416.  Instrument  selecting  person  as  executor  under  a  power  contained 

in  a  will. 

1417.  Petition  for  order  requiring  an  executor  named  in  will  to  qualify 

or  renounce. 

1418.  Order  requiring  executor  named  in  will  to  qualify  or  renounce. 

1419.  Order  in  case  of  failure  of  executor  to  qualify,  pursuant  to  order 

(form  No.  1418). 

1420.  Petition  for  appointment  of  administrator,  with  the  will  annexed. 

1421.  Renunciation  by  person  having  prior  right  to  administer. 

1422.  Letters  of  administration  with  the  will  annexed. 

Article  Second. 

Forms  relating  to  revocation  of  probate. 

(Code  Civ.  Pro.,  Ch.  18,  Tit.  3,  Art.  2.) 

No.  1423.     Petition  for  revocation  of  probate  of  will 

1424.     Citation  upon  petition  for  revocation  of  jirobate  of  will. 


Contents.  xxix 

No.  1425.     Decree  revoking  probate,  or  confirming  probate  and  dismissing 
petition. 
1426.     Notice  of  revocation  of  probate. 

Article  Third. 

Foi'ms  relating  to  probate  of  heirship, 

(Code  Civ.  Pro..  Cli.  18,  Tit.  3,  Art.  3,) 

No,  1427.  Petition  for  probate  of  heirship. 

1428.  Citation  to  attend  probate  of  heirship. 

1429.  Decree  establishing  the  right  of  inheritance. 

1430.  Petition  to  vacate  or  modify  the  decree  establishing  the  right  of 

inheritance. 

1431.  Citation  upon  petition  (form  No.  1430). 

Article  Fourth. 

Foi'ms  relating  to  grant  of  letters  of  administration. 

(Code  Civ.  Pro.,  Ch.  18,  Tit.  3,  Art.  4.) 

No.  1432.  Petition  for  letters  of  administration. 

1433.  Citation  on  peti'Jon  for  letters  of  administration. 

1434.  Renunciation  of  right  to  administer. 

1435.  Appearance  by  creditor,  etc. 

1436.  Decree  awarding  administration. 

1437.  Bond  of  administrator. 

1438.  Oath  of  administrator. 

1439.  Letters  of  administration. 

Artice  Fifth. 

Forms  relating  to  temporary  administration. 

(Code  Civ.  Pro.,  Ch.  18,  Tit.  3,  Art.  5.) 

Ko.  1440.  Petition  for  temporary  administration. 

1441 .  Notice  of  application  for  order  appointing  temporary  administrator. 

1442.  Order  appointing  temporary  administrator. 

1443.  Letters  of  temporary  administration. 

1444.  Petition  for  payment  of  debt  by  temporary  administrator. 

1445.  Oath  of  temporary  administrator. 

1446.  Bond  of  temporary  administrator. 

1447.  Petition   that    temporiiry   administrator  deposit   money  or  show 

cause,  etc. 

1448.  Order  that  temporary  administrator  make  deposit  or  show  cause 

why  a  warrant  of  attachment  should  not  issue  against  him. 

Article  Sixth. 
Forma  relating  to  revocation  of  letters  testamentury  and  letters  of  administration. 
(Code  Civ.  Pro.,  Ch.  18,  Tit.  3.  Art.  G.) 
No.   1449.     Petition  by  jK-rson  interested  for  revocation  of  letters. 


XXX  Contents. 

No.  1450.  Citation  upon  petition  (form  No.  1449). 

1451.  Order  upon  return  of  citation  (form  No.  1450). 

145;J.  Decree  revoking  letters  on  failure  to  give  bond. 

1453.  Petitiou  by  executor  for  revocation  of  letters. 

Article  Seventh. 

Forms  relating  to  foreign  wilU  ;  ancillary  letters. 

(Code  Civ.  Pro.,  Ch.  18,  Tit.  3,  Art.  7.) 

No.  1453.     Petition  for  ancillary  letters  testamentary,  or  with  the  will  annexed, 
upon  foreign  probate. 

1454.  Petitiou  for  ancillary  letters  of  administration. 

1455.  Citation  on  petition  for  ancillary  letters. 


TITLE  IV. 

Article  First. 

Forms  relating  to  aid,  supervision  and  control  of  an  executor  or  administrator. 

(Code  Civ.  Pro.,  Ch.  18,  Tit.  4,  Art.  1.) 

No.  1456.  Petitiou   by  executor,   etc.,   in   proceeding  to  discover  property 
withheld. 

1457.  Citation  in  proceeding  to  discover  property  withheld,  etc. 

1458.  Order  to  be  annexed  to.  or  indorsed  upon,  citation  (form  No.  1457). 

1459.  Answer  of  person  cited,  as  to  ownership  of  property,  etc. 

1460.  Decree  awarding  possession  of  the  property  to  petitioner. 

1461.  Bond  to  prevent  decree. 

1462.  Warrant  to  seize  property. 

1463.  Petition  to  compel  the  return  of  an  inventory. 

1464.  Order  that  executor,  etc.,  return  inventory,  or  show  cause  why  he 

should  not  be  attached. 
1466.     Petition  by  creditor  for  payment  of  his  claim. 

1466.  Order  for  citation  on  the  above  petition. 

1467.  Citation  to  executor  to  show  cause  why  payment  of  claim  should 

not  be  decreed. 

1468.  Answer  of  executor  to  petition  for  payment  of  a  claim. 

1469.  Decree  dismissing  petition  on  filing  of  answer,  etc. 

1470.  Decree  for  payment  of  a  claim. 
J471.     Petition  for  payment  of  a  legacy. 

1472.  Decree  for  payment  of  a  legacy. 

1473.  Bond  by  legatee  on  application  within  a  year. 

1474.  Petition  on  failure  of  executor,  etc.,  to  set  aside  exempt  property. 

Article  Second. 

Forms  relating  to  accounting  and  settlement  of  the  estate. 

(Code  Civ.  Pro.,  Ch.  18,  Tit.  4,  Art.  2.) 

No.  1475.     Petition  for  judicial  settkment  of  account  of  executor  or  adminis- 
trator. 


CO]S  TENTS.  XXxi 

1476.  Order  to  account  upon  return  of  citation. 

1477.  Petition  by  executor  etc.,  for  judicial  settlement  of  his  account  on 

return  of  citation. 

1478.  Order  that  citation  issue  to  creditors,  etc.,  ou  petition  of  executor, 

etc.,  for  judicial  settlement  of  his  account. 

1479.  Petition  of  executor,  etc.,  after  expiration  of  a  year  for  an  account- 

ing, he  not  having  been  cited. 

1480.  Administrator's,  etc.,  account. 

1481.  Atfidavit  of  executor,  etc.,  to  account. 

1482.  Account  of  executor  or  administrator  on  final  settlement. 

1483.  Decree  for  payment  and  distribution. 


TITLE  V. 

Formt  reUiting  to  the  disposition  of  tJie  decedent's  real  property,  for  the  payment  of 
debts  and  funeral  expenses. 

(Code  Civ.  Pro.,  Ch.  18,  Tit.  5.) 

No.  1484.     Petition  for  disposition  of  real  property  of  a  decedent,  for  the  pay- 
ment of  his  debts  and  funeral  expenses. 

1485.  Decree  directing  mortgage  or  lease  of  real  property  of  decedent  for 

payment  of  debts,  etc. 

1486.  Decree  for  sale  of  real  property,  for  payment  of  debts,  etc.,  of 

decedent. 

1487.  Order  directing  execution  of  decree  on  filing  of  bond  by  executor, 

etc. 

1488.  Bond  to  be  given  by  executor  or  administrator  before  executing 

decree  for  disposition  of  real  property. 

1489.  Report  of  sale  by  executor,  etc. 

1490.  Order  confirming  sale. 

1491.  Deed  of  executor  or  administrator. 

1493.  Order  for  publication  of  notice  of  distribution. 

1493.  Notice  of  distribution  of  proceeds  of  disposition  of  real  property. 

1494.  Supplementary  decree  for  distribution  of  proceeds  of  sale. 

1495.  Notice  to  widow  of  satisfaction  of  her  dower. 

1496.  Widow's  release  of  dower  and  consent  to  accept  a  gross  sum 


TITLE  VI. 
Forms  relating  to  provisions  reluting  to  a  testamentary  trustee. 
(Code  Civ.  Pro.,  Ch.  18,  Tit.  6.) 

No.   1497.     Petition  by  testamentary  trustee  for  final  settlement  of  his  accounts. 

1498.  Petition  by  person  interested  in  the  estate  for  intermediate  acc  ount 

by  testamentary  trustee. 

1499.  Petition  to  compel  payment  of  nioney  or  delivery  of  personal  prop- 

erty by  testamentary  trustee. 
1500      Citation  pursuant  to  petition  for  paynu-nl  of  money  or  dilivc  ly  of 
peisonal  property  by  teslamenlary  trustee. 


xxxii  Contents. 

No.   loOl.     Answer  of  testamentary  trustee  to  petition  to  compel  payment  of 
money  or  deliverj'  of  personal  property. 

1502.  Decree  dismissing  petition,  etc.,  on  tiling  of  answer, 

1503.  Petition  by  persons  interested  in  execution  of  trusts,  etc.,  for  judi- 

cial settlement  of  account  of  testamentary  trustee. 
1?04.     Petition  of  testamentary  trustee  for  leave  to  resign  his  trust. 
1505'.     Petition  for  security  from  testamentary  trustee. 
1506.     Petition  for  removal  of  testamentary  trustee. 


TITLE  VII. 

Forms  relating  to  proxiisions  relating  to  a  guardian. 

Article  First. 

Forms  relating  to  tJie  appointment,  removal  and  resignation  of  a  general  guardian. 

(Code  Civ.  Pro.,  Ch.  18,  Tit.  7,  Art.  1.) 

Ko.  1507.     Petition  by  infant  over  fourteen  for   appointment  of  a  general 
guardian. 

1508.  Affidavit  as  to  circumstances  of  minor. 

1509.  Citation  upon  petition  for  appointment  of  general  guardian. 

1510.  Decree  appointing  general  guardian  of  infant. 

1511.  Petition  by  mother  of  infant  under  fourteen  years  of  age  for  ap- 

pointment of  temporary  guardian. 

1512.  Bond  of  general  guardian  of  infant. 

1513.  Letters  of  guardianship. 

1514.  Petition  for  revocation  of  letters  of  guardianship. 

1515.  Citation  to  guardian  upon  petition  for  revocation  of  his  letters. 

1516.  Decree  revoking  letters  of  guardianship. 

1517.  Order  suspending  guardian  during  pendency  of  proceeding  for  re- 

vocation of  htters. 

1518.  Petition  by  general  guardian  for  revocation  of  letters. 

1519.  Citation  upon  application  of  general  guardian  for  revocation  of 

letters. 

1520.  Order  allowing  petitioner  to  account  for  the  purpose  of  being  dis- 

charged. 

1521.  Decree  revoking  letters  and  discharging  guardian. 

1522.  Petition  for  ancillary  letters  of  guardianship. 

1523.  Decree  granting  ancillary  letters  of  guardianship. 

Article  Second. 

Forms  relating  to  the  supervision  and  control  of  a  general  guardian,  and  settlement 

of  his  accounts. 

(Code  Civ.  Pro.,  Ch.  18,  Tit.  7,  Art.  2.) 

No.  1524.     Annual  inventor}-  and  account  of  guardian. 

1525.  Petition  for  judicial  .settlement  of  guardian's  account. 

1526.  Citation  to  guardian  for  judicial  settlement  of  his  account. 


Contents.  xxxiii 

Article  Third. 

Forms  relating  to  guardians  appointed  by  wiU  or  deed, 

(Code  Civ.  Pro.,  Ch.  18,  Tit.  7,  Art.  3.) 

No.  1527.    Petition  for  security  to  be  given  by  guardian  appointed  by  deed  or 

will. 


CHAPTER  XIX. 

FORMS  RELATING   TO  COURTS  OF  JUSTICES  OF  THE  PEACE, 
AND  PROCEEDINGS  THEREIN. 

TITLE         I.     Forms  relating  to  jurisdiction  and  general  powers. 

TITLE       II.     Forms  relating  to  commencement  of  action ;  appearance  of 

parties ;  provisional  remedies. 
TITLE      III.     Forms  relating  to  pleadings,  including  counterclaim,  and  pro- 
ceedings upon  answer  of  title. 
TITLE      IV.     Forms  relating  to  proceedings  between  the  joinder  of  issue  and 
the  trial. 
Forms  relating  to  trial  and  its  incidents. 
Forms  relating  to  judgment  and  docketing  the  same. 
Forms  relating  to  executions. 
Forms  relating  to  appeals. 

Forms  relating  to  action  or  special  proceeding  relating  to  an 
animal  straying  upon  the  highway. 
TITLE        X.     Forms  relating  to  miscellaneous  provisions. 

TITLE  I. 

Forms  relating  to  jurisdiction  and  general  powers. 

(Code  Civ'.  Pro.,  Ch.  18,  Tit.  \.) 

No.  1528.     Warrant  of  arrest  for  criminal  contempt. 

1529.  Record  of  conviction  for  criminal  contempt. 

1530.  Warrant  of  commitment  for  criminal  contempt. 


TITLE 

V. 

TITLE 

VI. 

TITLE 

VII. 

TITLE 

VIII. 

TITLE 

IX. 

TITLE  II. 

Article  First. 

Forms  rekiting  to  commencement  of  action. 

(Code  Civ.  Pro.,  Ch.  19,  Tit.  2,  Art.  1.) 

No.  1531.  Summons  issued  l)y  a  justice  r)f  the  peace. 

1532.  Return  of  service  of  justice's  sunimons. 

1533.  Return  by  constable  of  failure  to  make  service  of  summons. 

B 


^xxiv  Contents. 

Article  Second. 

Forms  relating  to  apj)earance  of 'parties, 

(Code  Civ.  Pro.,  Ch.  I'J,  Tit.  2,  Art.  2.) 

No.  1534.     Consent  of  person  to  act  as  guardian  ad  litem  of  infant  plaintiff. 

1535.  Consent  of  person  to  be  appointed  guardian  ad  litem  of  infant 

defendant. 

1536.  Offer  b}'  defendant  to  allow  judgment. 

1537.  Acceptance  of  defendant's  offer  by  plaintiff, 

Akticle  TniiiD. 

Forms  relating  to  order  of  arrest. 

(Code  Civ.  Pro.,  Ch.  19,  Tit.  2,  Art,  3.) 

No,  1538.  Affidavit  to  obtain  order  of  arrest. 

1539.  Order  of  arrest  granted  by  justice  of  the  peace. 

1540.  Undertaking  upon  application  for  order  of  arrest. 

1541.  Return  of  constable  to  order. 

1542.  Notice  of  application  for  discbarge  from  arrest. 
1548.  Order  discharging  defendant  from  arrest. 

1544.  Affidavit  to  procure  discharge  by  justice  of  the  peace  of  privileged 

person  from  aiTcst. 

1545.  Order  of  justice  of  the  peace  discharging  privileged  person  from 

arrest. 

Article  Fourth. 

Forms  relating  to  attac^iment  of  property. 

(Code  Civ.  Pro.,  Ch.  19,  Tit.  2,  Art.  4.) 

No.  1546.     Affidavit  for  attachment  on  application  to  justice  of  the  peace. 

1547.  Warrant  of  attachment  Issued  by  justice  of  the  peace. 

1548.  Undertaking  on  granting  warrant  of  attachment  by  justice  of  the 

peace. 

1549.  Inventory  of  attached  property. 

1550.  Defendant's  undertaking  on  attachment, 

1551.  Bond  of  third  person  on  claim  to  property  attached. 

1552.  Constable's  return  to  warrant  of  attachment  issued  by  justice  of 

the  peace. 

1553.  Motion  to  vacate  or  modify  warrant,  or  to  increase  the  plaintiff's 

securit}'. 

Article  Fifth. 

Forms  relating  to  replevin  injustices'  courts, 

(Code  Civ.  Pro.,  Ch.  19,  Tit.  2,  Art.  5.) 

No.  1554.  Affidavit  to  procure  replevin  in  justice's  court. 

1555.  Requisition  to  constable  to  replevy  chattel, 

1556,  Undertaking  to  procure  replevin. 

1557.  Constable's  return  to  requisition  for  replevin  of  chattel 

1558,  Notice  of  exception  to  sureties  by  defendant. 

1559,  Affidavits  to  require  return  of  chattel  replevied. 

1560.  Undertaking  to  obtain  return  of  chattel  replevied. 


Contents.  xxxv 

No.  1561.     Notice  of  justification  of  sureties  and  certificate  of  allowance. 

1562.  Aflidavit  by  tliird  person  or  liis  agent  or  attorney  claiming  title  to 

chattel  replevied 

1563.  Notice  by  constable  to  plaintiff  tliat  he  requires  indemnity  on  claim 

by  thirtl  person. 

1564.  Executions,  etc.,  in  replevin,  under  section  2931  of  Code  of  Civil 

Procedure . 

TITLE  III. 

Fhrms  relating  to  pleadings  in  justices'  courts,  including  counterclaims  and  pro- 
ceedings upon  answer  of  title. 

(Code  Civ.  Pro,,  Ch.  19,  Tit.  3.) 

No.  1564a.  Undertaking  to  remove  action  to  Iung.s  County  court. 

1565.  Complaint  in  justice's  court,  general  form. 

1566.  Answer  in  justice's  court,  general  form. 

1567.  Answer  of  title  in  justice's  court. 

1568.  Undertaking  on  interposing  answer  to  title. 


TITLE  IV. 

Article  First. 

Form8  relating  to  adjournments. 

(Code  Civ.  Pro.,  Ch.  19,  Tit.  4,  Art.  1.) 

No.  1569.     Undertaking  upon  adjournment. 

1570.     Undertaking  to  procure  discharge  of  defendant  from  custody  on 
adj(mrnment. 

Article  Second. 

Forms  relating  to  conipeUing  th-  attendance  of  a  witness. 

(Code  Civ.  Pro.,  Ch  19,  Tit.  4,  Art.  2.) 

1^0.  1571.  Subpoena  issued  by  justice  of  the  peace. 

1572.  Constable's  return  of  service  of  subpoena. 

1573.  Affidavit  to  procure  warrant  of  attachment  for  a  witness. 

1574.  "Warrant  of  attachment  against  a  defaulting  witness. 

1575.  Minute  of  conviction  of  witness. 

157G.     Execution  upon  minute  of  conviction  (No.  1575). 

Article  Third. 

Forms  relating  to  commission  to  take  testimony,  issued  by  justice  of  the  peace. 

(Code  Civ.  Pro.,  Ch.  19,  Tit  4,  Art.  3.) 

No.   1577.     Aflidavit  to  obtain   commission   to  examine  witness  out  of  the 
county  of  the  justice. 

1578.  Notice  of  application  for  a  commission. 

1579.  Affidavit  of  service  of  notice  (No.  1578). 

1580.  Commission  to  examine  witnes,s. 

1581.  Consent  of  parties  to  commi.s.si<in  for  examination  of  witne.ss  upon 

oral  questions. 


xxxvi  Contents. 

TITLE  V. 

Fotms  relatinfi  to  trial  and  its  incidents, 

(Code  Civ.  Pro.,  Ch.  19,  Tit.  5.) 

No.  1582.  Venire. 

1583.  Constables  return  to  venire. 

1584.  Oath  of  juror. 

1585.  Oath  of  witness. 

1586.  Warrant  of  commitment  of  witness  refusing  to  be  sworn,  etc. 

1587.  Constable's  oath  to  keep  jury. 

1588.  Proceedings  to  impose  upon  and  collect  from  jurors  a  fine  foi 

failure  to  attend  or  refusing  to  serve. 


TITLE  VI. 

Forms  relating  to  judgment  and  docketing  the  same. 
(Code  Civ.  Pro.,  Ch.  19,  Tit.  6.) 

No.  1589.  Confession  of  judgment  before  justice  of  the  peace. 

1590.  Judgment  upon  confession. 

1591.  Transcript  of  justice's  judgment  for  recovery  of  money. 
1593.  Transcript  of  justice's  judgment  for  recovery  of  chattel. 


TITLE  VII. 

Forms  relating  to  executions  in  justice's  court. 
(Code  Civ.  Pro.,  Ch.  19,  Tit.  7.) 

No.  1593.  Justice's  execution,  upon  judgment  for  money. 

1594.  Renewal  of  execution. 

1595.  Constable's  notice  of  sale  under  ju.stice's  execution. 

1596.  Indorsement  of  levy  upon  execution. 

1597.  Affidavit  of  debtor  to  obtain  discharge  from  imprisonment  under 

justice's  execution. 

1598.  Execution  upon  justice's  judgment  in  action  for  a  chattel. 

1599.  Complaint  in  action  against  constable  for  not  returning  execution 

within  five  days  after  the  return  day. 

1600.  Execution  upon  justice's  judgment  docketed  with  county  clerk. 


TITLE  VIII. 

Article  First. 
Forms  relating  to  appeals  generally  from  justice's  judgment. 
(Code  Civ.  Pro.,  Ch.  19,  Tit.  8,  Art.  1.) 
No.  1601.     Notice  of  entry  of  judgment  to  limit  time  to  appeal. 

1602.  Notice  of  appeal  from  judgment  rendered  by  justice  of  the  peace. 

1603.  Undertaking  to  stay  execution  ui)on  judgment. 


Contents.  xxxvii 

No.  1604.     Notice  to  respondent  of  delivery  of  undertaking. 

1605.  Justice's  return  upon  appeal  from  his  judgment. 

1606.  Judgment  of  reversal  on  appeal  from  justice's  judgment,  and  award 

of  restitution. 

Article  Second. 

Forms  relating  to  appeal  from  justice's  judgment  when  a  new  trial  is  not  had  in 

the  appellate  court. 

(Code  Civ.  Pro.,  Cli.  19,  Tit.  8,  Art.  2.) 

No.  1607.     Stipulation  of  defendant  for  reversal  on  appeal. 

Article  Third. 

Forms  relating  to  appeal  from  justices  judgment  for  a  new  trial  in  the  apvel- 

late  court. 

(Code  Civ.  Pro.,  Cli.  19,  Tit.  8,  Art.  3.) 

No.   1608.     Offer  of  judgment  on  appeal  from  money  judgment. 

1609.  Notice  to  respondent  of  acceptance  of  offer. 

1610.  Offer  of  judgment  after  case  is  deemed  at  issue  in  appellate  court. 


TITLE  IX. 

Forms  relating  to  action  or  special  proceeding  relating  to  an  animal  ttraying 

upon  the  highway. 

(Code  Civ.  Pro.,  Ch.  19,  Tit.  10.) 

No.  1611.     Complaint  in  action  for  penalty  for  suffering  animals  to  run  at 
large  upon  highway. 

1612.  Petition  for  final  order  directing  sale  of  animals  seized  when  run- 

ning at  large,  etc. ,  on  street,  highway,  etc. 

1613.  Precept  upon  petition  (form  No.  1612). 

1614.  Final  order  directing  sale  of  animals. 

1615.  "Warrant  for  sale  of  animals  seized. 

1616.  Notice  of  claim  to  surplus  of  the  proceeds  of  sale  of  animals 

seized. 

1617.  Verdict  of  jury  in  favor  of  party  answering. 

1618.  Final  order  upon  verdict. 

1619.  Warrant  upon  final  order  (form  No.  1618). 

1620.  Undertaking  on  appeal  from  final  order. 


TITLE  X. 

Forms  relating  to  miKCcVnneovs  promsiont. 
(Code  Civ.  Pro.,  Ch.  19.  Tit.  12..) 

No.  1621.     Transfer  of  af:tion  when  jiistice's  term  expires,  etc. 

1622.  Afiidavit  when  justice  is  a  witness  to  o])tain  order  for  transfer  of 

action,  etc. 

1623.  Order  upon  foregoing  affidavit. 


:jcxxviii  Contents. 

CHAPTER  XX. 

Forma  relating  to  costs,  etc, 

(Code  Civ.  Pro.,  Cb.  21.) 

TITLE      I.     Forms  relating  to  awarding  and  enforcing  payment  of  costs 
TITLE    II.     Forms  relating  to  fixing  the  amount  of  costs. 
TITLE  III.     Forms  relating  to  security  for  costs,  etc. 

TITLE  I. 

Article  First. 

Form*  relating  to  miscellaneous  provisions  as  to  awarding  and  enforcing  pay- 

ment  of  costs. 

(Code  Civ.  Pro.,  Cb.  21,  Tit.  1,  Art.  1.) 

No.  1624.     Certificate  entitling  party  to  costs  or  increased  costs. 


TITLE  II. 

Article  First. 

Forms  relating  to  nums  allowed  as  costs. 

(Code  Civ.  Pro.,  Cb.  21,  Tit.  2,  Art.  1.) 

No.  1625.  Bill  of  costs. 

1626.  Notice  of  motion  for  extra  allowance  of  costs. 

1627.  Order  for  extra  allowance. 

1628.  Affidavit  to  procure  adjournment  of  trial. 

1629.  Order  postponing  trial. 

Article  Second. 

Forms  relating  to  taxation  of  costs. 

(Code  Civ.  Pro.,  Cb.  21,  Tit.  2,  Art.  2.) 

No.  1630.  Notice  of  taxation  and  retaxation  of  costs. 

1631.  Affidavit  respecting  disbursements. 

1633.  Affidavit  of  attendance  and  travel  fees  of  witnesses. 

1633.  Same  affidavit,  another  form. 


TITLE  III. 

Forms  relating  to  security  for  costs,  etc 
(Code  Civ.  Pro..  Cb.  21,  Tit.  8.) 

No.  1634.     Affidavit  to  obtain  security  for  costs. 

1635.  Order  requiring  security  to  be  given. 

1636.  Undertaking  pursuant  to  order  (form  No,  1635). 


CONTEITTS.  XXxix 

No.  1637.     Affidavit  of  merits  to  prevent  inquest. 

1638.  Order  directing  service  of  notice  of  motion  for  cancellation  of 

notice  of  pendency  of  action. 

1639.  Affidavit  on  moiiou  to  cancel  notice  of  pendency  of  action,  where 

action  lias  abated,  etc. 

1640.  Notice  of  motion  for  cancellation  of  notice  of  pendency  of  action. 

1641.  Order  directing  cancellation  of  notice  of  pendency  of  action. 


Table  of  Contents  ili 

Table  of  Cases  Cited    xli 

Addenda    

Index  to  Volumes  I  and  II    1443 


TABLE  OF  CASES  CITED. 


[the  keferences  are  to  the  pages.] 


Acker  v.  Acker 379 

Ackerman  v.  Delude 315 

Adams  v.  Bush 380 

Adams  V.  HoUey 879 

Adams  v.  Mayor  of  New  York . .  877 

Adams  v.  McPartlia 95 

Adams  v.  Nellis 239 

A'lams  V.  Popham 620 

Ad  uiis  V.  Roberts 103 

Adee  v.  Adee 134 

Adee  v.  Bigler 211 

Adsit  V.  Butler 746 

Adsit  V.  Sandf  ord 746 

As;ate  v.  Loweabein 616 

Ager  V.  Murray 740 

Agricultural  lus.  Co.  v.  Barnard, 

1124,  1126 

Aikraan  v.  Harsall 548,  549 

Akin,  la  re  Estate  of 1336,  1338 

Aldrich  v.  Sager 890 

Alexander  v.  Meyers 73 

Alexander  v.  Shilaber 893 

Alger  V.  Conger 722 

Alger  V.  Johnson 901 

Alvord  V.  Syracuse  Savings  Bank,  910 

Allen  V.Allen    ...  21,  117,  693,  700 

Allen  V.  Fox  653 

Allen  V.  Judson 654 

Allen  V.  Mahon 1441,  1442 

Allen,  Matter  of ...  1270 

Allen  V.  Meyer 166,  194,  283 

AUerton  v.  Belden 853 

AUis  V.  Leonard 98 

Am.  Ex.  Bank  v.  Brandreth 376 

American  Tool  Co.  v.  Smith  ....  636 

Anderson  v.  Gurlay 94 

Anderson  v.  Hunt 123 

Anderson  v.  Hitchcock 708 

Anderson  v.  Speers  86 

Anderson  v.  West 289 

Andrews  v.  Prince 274 

Andrews  v.  Schwartz 166 

Angel  v.  llollister 653 

Angell  V.  Lawton 65,  766 

Anonymous 805 

Ansonia  Brass  Co.  v.  Conner 899 

Anthony  v.  Stype 166 

An  way  v.  David 1187 

Appleby  V    Appleby 694 

Arcbf-r  v.  Furniss 1313 

Architcftural  Iron  Works  v.  City 

of  Brooklyn 415 

Argall  v.  Buclirach 1213 

F 


Argall  V.  Pitts 570 

Armstrong  v.  Cummings 1033 

Armitage  v.  Mace 659 

Armstrong  v.  Masten 902 

Ai-mstrong  v.  Wing 732 

Arnold  v.  Oliver 376 

Arteaga  v.  Conner 823 

Arthur  v.  Nelson 1328 

Asendorf  v.  Meyer 224 

Ashley  v.  Turner 1201 

Asinari  v.  Volkening 239 

Atkins  V.  Saxton 197,    45' ' 

Atkinson  v.  Collins 875 

Atkinson  v.  Stryker 1296 

Atlantic  and  Pacific  Tel.  Co.  v. 

B.  and  O.  R.  R.  Co 1062,  1004 

Attorney,  In  the  Matter  of  an . . .  285 
Attorney,  In  the  Matter  of  an. . .  4 
Att'y-Gen.  v.  Continental  L.  Ins. 

Co 719 

Att'y-Gen.  v.  Guardian  M.  L.  Ins. 

Co 718 

Auburn  City  Bank  v.  Leonard . .       95 

Austin  V.  Ahearne 879 

Austin  V.  Schluyter 486 

Austin  V.  N.  J.  Steamboat  Co. . .     789 

Averill  v.  Taylor 604 

Avery  v.  Everett 1083 

Ayers  v.  Lawrence 910 

Aylesworth  v   St.  John 1422 

Babcock  v.  Clark 146 

Babcock  v.  Libbey 836 

Bache  v.  Doscher 582,  585 

iJacon  V.  Goldsmith 1191 

Badger  v.  Badger 549 

Bailey  v.  Briggs 609,  610 

Baine  v.  City  of  Rochester 1435 

Baird  v.  Gillett 7i)7 

Baker  v.  Baker 1060 

Baker  v.  HatHeld 413 

Baker,  In  re 931 

Baker,  In  the  Matter  of  Daniel  S. ,  933 

Baldwin  v.  Roberts 854,  858 

Baldwin  v.  Perry 1181 

Ballard  v.  Charlesworth 1262 

Ballard  v.  Sherwood 354 

Ballou  v.  Boland 1198 

Ballon  V.  Jones 746 

Baltimore  and  Ohio  R.  R.  Co.  v. 

Arthur 255 

Baldwin  v.  Roberts H58 

Banker  v.  IJanker 670 


xlii 


T.\]?LE  OF  Cases  Cited. 


Bank  v.  Dugan 

Bank  of  Monroe,  Ex  parte 

Bank  of  Rondoiit  v.  Drej'fns  . . . 
Bank  of  Rochester  v.  Emerson. . 

Bank  for  Savings  v.  Hope 

Bank  of  Po'keepsie  v.  Ibbotson. . 

Bank  of  Havana  v.  Moore 

Bank  of  United  States  v.  Strong, 

Banks  v.  Carter 

Bannon  v.  McGrane 

Barber  v.  Barber 

Barber  v.  Gould 

Barber  v.  ]\Iorgan 

Barber  v.  People 

Barber  v.  Stettheimer 

Barck  v.  Sciin 

Barclay  v.  Quicksilver  Mi'g  Co., 
Bark  ley  v.  Kens  and  Saratoga  R. 

U.  Co 

Barne  v.  Neuss 

Barnes  v.  Barnes 

Barnes,  Estate. of 

Barnes  v.  Harris 

Barnes  v.  Mayor 

Barnes  v.  M.  andKW.  R.  R.Co., 

Barnes  v.  West 335, 

Barnum  v.  Merchants'  Fire  Ins. 

Co 

Barre,  Matter  of 

Barry  v.  Brune    

Barry  v.  Ransom 

Barto  V.  Himrod 

Bartlett,  In  re 

Baitlett  V.  Holmes 

Bartlett  v.  Mr.sliner 

I'artley  v.  Riclitmyer 

Hassell  v.  Elmore 

Batchelor,  Estate  of 1270, 

Bates  v.  Plonsky 

Bathgate  v.  Haskins 

Battell  V.  Burrill 

Battell  V.  Torrey 

Batterson  v.  Sanford 

Baucus  V.  Stover 

Baxter  V.  Missouri, etc.,  R.  R.  Co., 

Baylis  v.  Swarlwout 

Beach  v.  Cooke 

Beach  v.  Mayor  of  New  York. . . 

Beall  V.  Dey 285, 

Beard  v.  Yates 

Beams  v.  Gould 

Bech  V.  Ruggles 

Becker  v.  Barnum 

Becker  v.  Bochus 

Becker  v.  Boom 223, 

Becker  v.  Howard 

Becker  v.  Sitterly 

Beckwith,  In  the  Matter  of,  390, 
Beddoe's  Executor  v.  Wadsworth, 

Bedford  v.  Terhune 

Beebe,  Matter  of 

Beekman  v.  Plainer 875, 

Beekman  v.  Vanderveer 


757 

470 

746 

582 

1184 

920 

417 

253 

1041 

722 

1247 

827 

837 

1190 

1422 

1023 

95 

109 

340 

1319 

1311 

93 

255 

51 

336 


1358 
894 
859 
347 
931 
359 
547 
817 
805 

1301 
746 
225 

1138 

1122 
275 

1223 
176 

1312 
602 
274 
280 
324 

1245 
253 
890 

1274 
224 
585 

1408 
413 
888 
879 

1304 
878 

1318 


Beers  V.  Shannon 732,  859  1300 

Bcesley  v.  Dolley 895 

Beggs,  In  re 5 

Beldeii  v.  Slade 604 

Bell  v.  Male 123 

Bell  v.  Shil)ley      347 

Bell  v.  Sun  Printing,  etc.,  Co. . .  813 

Belmont  v.  Cornen 65 

Bendetson  v.  French 799 

Benedict  v.  Benedict 154,  351 

Benedict,  etc.,  M.  Co.  v.  Thayer,  429 

Benedict  v.  Rea 920 

Bengston     v.     The     Thingvalla 

Steamship  Co  899 

Benjamin  v.  De  Groot 37 

Bennett  v.  Bagley 459 

Bennelt  v.  Bundy 514 

Bennett  v.  Edwards 163,  166 

Bensel  v.  Lynch 841 

Benson,  In  re 1023 

Berdell  v.  Berdell 276 

Bergen  v.  Carman 596,  741 

Bergen  v.  Patterson 376 

Bergh's,  Henry,  case 3 

Bergmann  v.  Jones 814 

Berney  v.  Drexel 649 

Bernstein,  Matter  of 1299 

Berney,  Matter  of 1296 

Bertolf  V.  O'Reilly 890 

Bertschy  v.  Bertschy 700 

Besson  v.  Southward 827 

Best  v.  Vedder 230 

Belts  V.  Belts 1327 

Bevier  v.  Schoonmaker 597 

Bick  V.  Murphy 1236,  1240 

Bigelow  V.  Whitehall  Man'f 'g  Co. , 

106,  108 
Bierbauer  v.  N.  Y.  C.  and  H.  R. 

R.  R.  Co 783 

Bingham  v.  Beckwith 827 

Bingham  v.  Burlingame 1226 

Bird  V.  The  JMavor,  etc 910 

Birdsall  v.  Patterson 260 

Birdsall  v,  Fuller 823 

Birdsall  v.  Phillips 1031 

Bissel  V.  Drake 845 

Blaine  v.  City  of  Rochester 1435 

Blair  V.  Bartlett 797 

Blake  v.  The  Lyon  and  Fellows 

Manuf 'g  Co 419 

Blancan,  In  re 1261 

Blanchard  v.  New  Jersey  Steam- 
boat Co 789 

Blanchard  v.  TuHp 803 

Blanck  v.  Littell 900 

Blason  v.  Bruno 12.; 

Bleecker  v.  Smith 315 

Bliss  V.  Johnson 625,  825,  1041 

Bliss  V.  Molter 250 

Blodgett  V.  Race 823,  827 

Bloodgood  V.  Bloodgood 700 

Bloonitield  v.  Ketcham 382 

Bloomingdale  v.  Barnard 604 


Table  of  Cases  Cited. 


xliii 


Blossom  V.  Hatfield 732 

Blumeiithal  v.  Anderson 376 

Board  of  Excise  v.  Garliughouse,  234 

Bockes  V.  Hat  horn 395 

Bodiue  v.  Walters 1412 

Boerum  v   Betts 1209,  1210 

Bogart  V.  Dart 166 

Boi;;ert  v.  Bogert 516 

Bogert  V.  Gulick 893 

Bokel  V   Bokel  682 

Bolles  V.  Duff 599 

Boiling  V.  Coughlia 1365 

Bomanjee    Byramee    Colah,    In 

Matter  of 1092 

Bonanza    Development     Co.    v. 

Hayes... 812 

Bonnell  v.  R. ,  W.  and  O.  R.  R.  Co. ,  230 

Borden  v.  Fitch     818 

Borthwick  v.  Howe 1021,  1023 

Bostwick  V.  Franktield 1032 

Boucicault  v.  Boucicault 127 

Boughton  V.  Flint 1331 

Boughton  V.  Seamans 1150 

Bowen  v.  Beck    568 

Bowery  ISTat.  Bank  v.  Duryea. . .  123 

Bowghen  v.  Nolan 105 

Bowne  v.  Lynde 580 

Boyce  v.  Brockway 846 

Boyle  V.  St.  John 1245 

Boylston  v.  Wheeler 609 

Bradburj-  v.  Winterbottom 100 

Bradford  v.  Fox 895 

Bradner  v.  Faulkner 823,  827 

Braduer  v.  Holland 747 

Bradner  v.  Howard 1396 

Bradner,  Matter  of 269,  1062 

Bradshaw  v.  Callaghan  . .    .   512,  513 

Brainard  v.  Birdsall 131 1 

Brainard  v.  Hudson . 1033 

Brand  v.  Hammond 893 

Brandreth,  In  re 376 

Bray  v.  Smith 1276 

Brasiil  v.  Isham 902 

Breiman  v.  Liverpool  L.  and  G. 

Ins.  Co   255 

Brett  V.  Brett 1063,  1075 

Brevoort  v.  Brevoort 514,  523 

Brewer  v.  Temple 824 

Brew.ster  v.  Balch 1245 

Brewster  v.  Salomon 123 

Brewster  v.  Silliman 653 

Bridges  v.  Supervisors,  etc 914 

Briggs  V.  Gaunt 251,  253 

Briggs  V.  Oliver 659 

Briggs  V.  Waldron 306 

Brinklev  V.  Brinkley 260,     700 

Brishan  ads.   Iloyt 286 

Brisbane  v.  Brisbane..  274,  276,  1062 

Brittan  v.  P(!a1)ody 315 

Britton  V.  Phillips 410 

Brokaw  v    Brokaw       302 

Bronner  v.  Loomis 372 

Br(jokmirc  v.  Monoghan 890 


Brooks  v.  Harison 813 

Brooks  V.  St.  John 1422 

Broome  v.  Taylor 113,     114 

Brotherton  v.  Downey 97 

Brown  v.  Brockett 123 

Brown  v.  Cassady 1055 

Brown  v.  Coiie 875 

Brown  v.  Knapp 723,  723,     724 

Brown  v.  Landon 1301 

Brown  V.  Lyddy 1147 

Browning  v.  Marvin 337 

Browning  v.  Paige 311 

Brown  v.  Seys 1446 

Brown  v.  The  Mayor,  1032,  1045,  1047 

Browne  v.    Vreden burgh 853 

Brownell   v.    National    Bank   of 

Gloversville 244 

Blossom  V.  Marvin 337 

Browning  v.  Vanderhoven 1245 

Bruce  v.  Burr 99 

Bruen  v.  Hone      878 

Bruggemann  v.  Bank  of  Metro- 
polis       255 

Bryan,  In  the  Matter  of 274,     276 

Buchanan  v.  Hunt 1>202 

Buck  v.  Remsen 654,     655 

Buckingham  v.  Swezey 197 

Buckingham  v.  White 176 

Buckley  v.   Gutta  Percha,  etc  , 

Manuf.  Co 1444 

Budlong  V.  Clemens 1314 

Buffalo,  In  the  Matter  of  city  of, 

384,     385 
Buffalo  Grape  and  Sugar  Co.  v. 

Alberffer 255 

Bulkeley  v.  Keteltas 827 

Bulkiey  v.  Staats 1312,  1314 

Bullard,  Matter  of 1233 

Bull's  Head  Bank  v.  Kochler  ...     224 

Bullymore  v.  Cooper 841 

Bultman  v.  Kindelon 1035 

Bunce  v.  Reed 1157 

Burchard,  In  re 5 

Burdett  v.  Lowe 414 

Burk  V.  Ayers 395 

Burke  v.  Ashley 114 

Burkham  v.  Van  Saun 379 

Burlingame  v.  Parce 95,     570 

Burnet  v.  Bookstaver 1107 

Burnet  V.  Denniston  1157 

Burnett  v.  Gould 740 

Burnham  v.  Brennan 429 

Bundiam  v.  Harrison 1338 

Burnbain  v.  Ouderdonk 610 

Burns  v.  Bryant 1041 

Burns  v.  Erben     833,     827 

I  Burtfs  v.  Thompson 823 

Bush  v.  Pettibone f^H 

I  Bush  V.  Weeks 1100 

Butler  V.  Flander 300 

Butler  V.  Kelscy 155 

Button  V.  M(;Causley ^^21 

Butler  V.  Mayor  of  New  York.  .   1147 


xliv 


Table  of  Case^^  Cited. 


Buzzard  v.  Knapp 821 

Byrnes  v.  City  of  Cohoes 347 

Cadv  V.  McDowell 659 

Ctigger  V.  Lansing  .  486,  498,  894 
Cahen   v.   Continental    Life   Ins. 

Co 883 

Caines  v.  Smith 838 

Calhoun  v.  llallen 97 

Calkins  v.  Barger 888 

Camp  V.  IngersoU 335 

Camp  V.  Norton 885 

Campbell  v.  Conner 176 

Campbell  v.  Iloge 244 

Campbell,  etc.,  Co.  v.  Lyddy 253 

Campl)ell  v.  Mallory 1032 

Campbell  v.  Seaman 366,  620 

Campbell  v.  Purdy 1323 

Canavan  v.  McAndrew 1181 

Candee  v.  Burke 1158 

Candee  v.  Smith 376 

Canfield  v.  Baltimore  and  Ohio 

R.  R.  Co 787 

Cardot  v.  Barney 782 

Cardwell  v.  Cardwell 682 

Carl  V.  Ayers 827,  830 

Carleton  v.  Carleton 65 

Carley  v,  Hodges 230 

Carpenter  v.  Allen 498 

Carpenter  v.  Blake 797 

Carpenter  v.  Bell 895 

Carpenter  v.  Conn.  Ins.  Co 315 

Carpenter  v.  Kent 878 

Carpenter  v.  Lott 662,  663 

Carpenter  v.  Steven.s 657 

Carpenter  v.  Taylor 799 

Carpenter  v.  Wiilett 841 

Carpentier  v.  Wiilett 845 

Carhart,  Matter  of 1210 

Carr  v.  Carr  .    347 

Carr  v.  Van  Hoesen 162,  1(J3 

Carris  v.  Ingalls 614,  615 

Carroll  v.  Hughes 1327,  1333 

Carroll  v.  Staten   Island  R.  R. 

Co 781 

Carter  v.  Clarke 1181 

Carter  v.  Youngs 62 

Casey  v.  Dwyre 347 

Cass  V.  Higenbotam 224 

Cassell  V.  Fisk 154 

Cassidy  y.  Cassidy 732 

Cassidy  v.  U.  S.  Reflector  Co. . . .  450 

Caulkins  v.  Bolton 255 

Cayuga  Co.  Bank  v.  Hunt 307 

Center  v.  Finch 1126 

Certwell  v.  Hoyt 817 

Costar  V.  Peters  410 

Chamberlain  V.  Greenleaf  . .  211,  220 

Chamberlain,  Matter  of 768 

Chamberlain    v.    Rochester,    S., 

etc..  Co 1172 

Chamberlain  v.  Taylor 490 

Chauncey,  Matter  of 1206,  1220 


Chandler  v.  City  of  Fon  du  Lac,  1193 
Chapin  v.  JVIerchanls'  JSat.   Bank 

Whitehall 649 

CJhapin  v.  Thompson 274,  331 

Chapman  v.  ilorrill 459 

Chappel  V.  Chappel 378 

Chappell,  In  re 1021 

Charlick,  Matter  of 1314 

Chase  v.  Lord 230 

Chase,  Matter  of 1287,  1288 

Chatterton  v.  Kreitler 143 

Chautauqua  Co.  Bank  v.  White,  503 
Chesborough  v.  N.  Y,  and  Erie 

R.  R.  Co 875 

Chester,  Ex  parte    767 

Chester  v.  Comstock 836 

Chesterman  v.  Eyhland 541 

Chipman  v.  Palmer 621 

Childs  V.  Kendall 746 

Chism  V.  Keith 523 

Christal  v.  Kelly 414 

Christian  v.  Gouge 73 

Christy  v.  Kiersted 313 

(■hrysler  v.  Canaday 837 

Church,  Matter  of 1092 

Church  V.  Van  Bureu 857 

Churchill  v.  Carter 291,  299 

Churchill  v.  Onderdonk 609 

City  Bank  v.  Lumley 123 

City  of  Buffalo  v.  Mackay. .  255,  381 

City  of  Buffalo,  Matter  of. .  384,  385 

Clafliu  V.  Baere 164 

Clapp  V.  Bromagham    513 

Clapp  V.  Graves 384 

Clark  V.  Biuiuger 1059 

Clark  V.  Campbell 313,  317 

Clark  V.  Candee 280 

Clark  V.  Foot 788 

Clark  V.  Goodridge 171 

Clark,  In  re 727,  1061 

Clark,  Matter  of 21 

Clark  V.  Reyburn 599 

Clarks  v.  Staring 265 

Clark  V.  Story 855 

Clark  V.  Wise 381 

Clarke  v,  Boreel 859 

Classen  v.  Leopold' 799 

Clayton  v.  Yarrington 289 

Clements  v.  Gerow 379 

Cleveland  v.  Crawford 609 

Closky  V.  Steuart 746 

Clute  v.  Emmerich 461 

Clute  V.  Wiggins 799 

Clyde  V.  Rogers 244 

Coats  V.  Darby 82.S 

Cobb  V.  Cornish 347 

Cobb  V.  Thornton 582 

Cocliran  v.  Gottwald 654 

Cochran's  Executor  v.  IngersoU,  26 

Cochrane  v.  IngersoU 1061 

Codd  v.  Codd 689 

Coddington  v.  Gilbert 51 

Coffin  V.  Gourlay 1023 


Table  of  Cases  Cited. 


xlv 


Coffin  V.  Prospect  Park,  etc.,  R. 
R.  Co 

Coit  V.  Campbell 

Coit  V.  Plauer 

Colali,  In  re 1092,  1104, 

Cole  V.  Blunt 

Cole  V.  Gourlay 

Cole|  V.  McClellan 

Cole  V.  Terpeuning 

Coles  V.  Appleby 

Coles  V.  Burns  

Coleman  v.  Burr 

Colgate  V.  Pennsylvania  Co 

Coltier  v.  De  Revere 

Colligan,  Matter  of 

Colligan  v.  McKernan 

Collins  V.  Collins 

Colman  v.  Dixon 

Colton  V.  Simmons 

Compton  V.  Compton 

Comstock  V.  Dodge 

Concordia  Savings  and  Aid  Asso- 
ciation V.  Read 

Conderman  v.  Hicks 

Conderman  v.  Trenchard 

Conklin  V.  Gandall 

Couklin,  Matter  of  Jacob 

Couley  V.  Palmer 

Conner  v.  Weber 

Conover  v.  Devlin 

Consalus,  Matter  of 

Consalus  v.  Brotherson 

Converse  v.  Walker 

Cooke  V.  Corljin 

(-ooke  V.  Darrow 

Cook  V.  Fredenthal 

Cook  V.  Roach 

Cook  V.  Hoswitz 

Cook  V.  Warren 114, 

Cook  V.  Whipple    

Conkling  v.  Gandall 

Conover  v.  Devlin 

Cooper  v.  Eastern  Tranportation 
Co 

Corbett  v.  De  Comeau,  273,  274, 

Corbett  v.  Gibson    

Cordier  v.  Thompson 

Cordell  v.  N.  Y.  C.  and  H.  R.  R. 
Co 

Cormier  v.  Hawkins 

Cornell  v.  Fryer 

CVjincil  V.  Masten 

Cornell  v.  Utica,  I.  and  E.  R.  R. 
Co 

Corning  v.  Corning 

(yorrigan  v.  0'('onnor 

Corrij^an  v.  Schack 

Cornwall 

Mills 

Corn  well 128«. 

Bowc 841, 

C.  and  H.  R. 


Cornwall  v. 
Cornwall  v. 
CJornwell  v. 
Cosgrf)ve  V. 
Cosgrove  v.  N.  Y. 
R.  Co 


Costar  v.  Peters 

159    Cottrell,  Matter  of  will  of 

230    Couch  V.  Mulhone 

879    Cowell  v.  Day 

1113  i  Cox  v.  Sehermerhorn 

902    Cox  V.  Wheeler 

1138    (oykendall  v.  Eaton 

271    Crandall  v.  Bryan 

1232    Crandall  v.  Hoysradt 

580  I  Crandall  v.  McKaye 

1425  I  Crawford  v.  Kastner 

746  '  Creamer  v.  Waller 

250    Cregin  v.  Brooklyn,  etc.,  R.  R. 

1180  Co   

1287    Crimmins  v.  Crimmins 

1257    Croft  V.  King 1031,  1043, 

700    ("rosier  v.  Cornell  Steamboat  Co., 

260    Cromwell  v.  Burr 

1441    Cromwell  v.  Romer 

260    Cromwell  v.  Spofford 

825    Crooke  v.  Corbin 

Grossman  v.  Grossman 

899    Grouse  v.  Frothingham 

899    Crow,  In  re 

899    Crowley  v.  Royal  Ex.  S.  Co 

867  Culver  V.  Rhodes 

1181  Cumberland  Coal  and  Iron  Co.  v. 

776       Hoffman  Steam  Coal  Co 

255    Gumming  v.  Brown 

931    Cunningham  v.  Goelet 

1223    Gurry  v.  Farley 

1441    Curry,  JMatter  of 

799    Curser,  Matter  of  Adm'n  of 

274    Cutter  v.  Cutter 1142, 

866  Curtis  v.  Gokey 

134 

123  Dabney  v.  Stevens 

134   Dagal  v.  Simmons ... 

868  Dain  v.  Wyckoff 815, 

379    Daly  v.  Byrne 

867  Damon  v.  ]\Ioore 

931    Daniels  v.  Patterson 

Dauchy  v.  Miller 

790   Davenport  Glucose  Manuf.  Co.  v. 

1441        Taussig 

278    Davidson  ▼.  Abbott 

722    Davies  v.  Davies 

Davis  v.  Burns 

782  Davis  v.  Davis 694, 

124  Davis  v.  Duffie 

274    Davis  V.  Ilerrig 

920    Davis  v.  Read 

Davis  V.  Standish 783, 

GzQ    i^avis  V,  Walsh 

825    Dave}'  v.  Lowrie 

549    Day  v.  Brosnan 1184, 

349    Day  v.  Lee 

766    Day  v.  Roth 

783  Da'wley  v.  Brown 

1290    Dayton  v.  .Jolmson 

814    I)(;  Agrcda  v.  Mantel 

I  I)e  Bussierrc  v.  llolladay 

782  I  De  Custro  v.  Brett  . 


410 

1251 

40 

803 

1327 

1157 

799 

123 

530 

123 

1046 

1311 

230 
6!)0 

1048 

1216 
395 
315 

1181 
274 

1246 

741 

953 

93 

514 

158 
768 
1031 
1418 
1304 
1284 
1145 
1150 

823 

897 
817 
813 
817 
656 
283 

649 

817 
514 
741 
696 
230 

1181 
609 
890 
335 
301 

11»8 

1181 

89(} 

95 

1293 
5H2 
351 

1150 


xlvi 


Table  of  Cases  Cited. 


Decker  v.  Kitchen 915,     932 

Decker  v.  Mallliews 846 

Dederick,  iMatter  of    5)75 

De  Forest  v.  Farley 58 1 

Delaiuater  v.  Byrue 414 

Delamater  v  Russell 81  (i 

De  Lancy  v.  ]Murphy 254,     255 

Delaplaine  v.  Ililclicock 4()1 

Demarest,  Estate  of 1261,  1202 

Demarest  v.  Wickham  .   ()62 

Denimert,  In  re 734 

Demelt,  In  re,  1091,  1094,  1095,  1101 

Denisou  v.  Seymour 789 

Dennis  v.  Jones 133(5 

Dennis  v.  Ryan  827 

Dennison  v.  Plumb • 768 

Derby  v.  Yale 757 

Derreubacber  v.  Lebigh  Valley  R. 

R.  Co o 899 

Dering  v.  Metcale 402 

De  Ruyter  v  Trusteesj  of  St  Pe- 
ter's Church 596 

Desmond  v.  Rice 866 

Devanbagb  V.  Devanbagb. .  674,     676 
Devlin  v.  Cooper  ....  967,  1015,  1023 

Devlin  v.  The  Mayor 333 

Dewey  v.  Moyer 746 

Dezengruel  v.  Dezengniel 37 

Dias  V.  Bouchaud 757 

Dickinson  v.  Dickey 381 

Dickinson  v.  Mayor  of  N.  Y 620 

Dickinson  v.  Onclerdonk 1195 

Dickson,  Matter  of 953 

Dieckerboff  v.  Ablborn 997,     999 

Dillon  v.  Dillon 684 

Diossy  V.  West 1184 

Dissosway  v.  Haywood 1226 

Dissosway,  In  the  Matter  of,  1226, 

1227,  1230 

Distin  V.  Rose 803,     805 

Dix  V.  Palmer 354 

Dixon,  Matter  of 953 

Doane  v.  Lindsay 197 

Dobson  V.  Pearce 857 

Dodge  V.  St.  John 1126 

Doe  V.  Roe 694,     803 

Doe  V.  Williams 1031 

Dolan  V.  The  Mayor 934 

Donald  V.  Rockwell 635 

Donelly  v.  West 1213 

Doner  v.  Williams 1396 

Donnell  v.  Williams 168,     197 

Donahue  v.  O'Conor 610 

Dorn  V.  Fox 255 

Doty  V  Carolus   325 

Douglas  V.  Douglas 700 

Douglass  V.  Haberstro,  40,  429,     841 

Douglass  V.  Woodwortb 602 

Douglass  v.  Atwell 1441 

Dows  V.  Bignall 845 

Dows  V.  Village  of  Irvington  . . .     902 

Dows  V.  Durfee 878 

Dows  V.  Kidder 255 


Dow  V.  Plainer 379 

Drake  v.  Wilkie 724 

Draper  v.  1  )i  aper 547 

Drexel  v.  Hurney     1296 

Drexel,  In  re 300 

Dreyfus  v.  Otis 123 

Dubois,  Matter  of 1172 

Dubois  v.  Brown 1232,  1333 

Dubois  v.  Cassidy 514 

Ducbe  v.   Buffalo   Grape   Sugar 

Co    313,  317 

Dudley  v.  Cbanf  ran 625 

Duel  v.  White 514 

Duff  v.  Hutchinson 244 

Duffany  v.  Ferguson 836 

Duncan  v.  Jones 904 

Dunford  v.  Weaver 52,  841,  1065 

Dunham  v.  Griswold 894 

Dunham   v.   Mercantile  M.   Ins. 

Co 274 

Dunham  v.  Waterman  . .    379 

Dunn  V.  Mason 254 

Dunning  v.  Bank  of  Auburn 

252,  253 

Dunning  v.  Fisher 585 

Dupre  V.  Rein 114 

Durkce  v.  Central  Pacific  R.  R. 

Co... .......,.„ 783 

Dusenbury  v.  Dusenbury 1190 

Dusenbury  v.  Keiley 823 

Dustan,  Matter  of 1274 

Dutchess  Co.  Bank  v.  Ibbottson,  307 

Dwight  v.  Enos 654 

Dwigbt  V.  Germania  L.  Ins.  Co.,  113 

I  Dyer  v.  Erving 1248 

Earle  v.  David.    857 

Early  v.  Early 734 

East  River  Nat.  Bank  v.  McCaf- 
frey      1338 

I  Eastman  v.  Starr 150 

Easton  v.  Bank  of  Stockton 828 

1  Easton  v.  Malavazi 62,  1 66 

j  Eaton  v.  North 285,  286 

}  Easton  v.  Pickersgill 585 

;  Eaton  V.  Wells 224 

Ebbinghousen  v.  Worth  Club.    .  904 

Ebersole  v.  N.  C.  R.  R 347 

Eddy  V.  Beach 823 

Edmeston  v.  Lyde 737 

Edick  v.  Crim 834 

Edwards  v.  Edwards 1323 

Eherhardt  v.  Schuster 724 

Ehrichs  v.  De  Mill 408,  409 

Elder  v.  Bogardus 794 

Eldridge,  Matter  of 4 

Eleventh  Ward  Savings  Bank  v. 

Hay 253 

Ellis  V.  K  Y.,  L.  E.  and  W.  R. 

•R.  Co 783 

Ellsworth  V.  ^tna  Fire  Ins.  Co.,  884 

Ellsworth  V.  Brown 258,  259 

Ellsworth  V.  Lockwood 604,  1157 


Table  of  Cases  Cited, 


xlvii 


Ellsworth  V.  Putnnm 616,  631 

Ely  V.  Cooke 379 

Emers(Mi  v.    Auburn  and  O.   L. 

R.  K.  Co  49 

Emerson  v.  Booth 859 

Emery  v.  Pease 878 

Emigrant  Industrial  Savings  B'k 

V.  Goldman ...  585 

English  V.  Ramsey 899 

Enuis  V.  Harmony  Fire  Ins.  Co.,  884 
Episcopal  Church  of  St.  Peter  v. 

Varian 1 53 

Erkenbrach  v.  Erkenbrach,   696,  700 

Erlacher,  In  re 1335 

Erwiu  V.  Loper 729 

Erwin  v.  Neversink  St'boat  Co.,  790 

Estes  V.  Wilcox. 741 

Etherington  v.  The  Prospect  Park 

and  Coney  Island  R.  R.  Co. . .  783 

Evans  v.  Cleveland    280 

Evans  v.  Hill 371,  741 

Evans  v.  Warner 166 

Everson  V.  Johnson 586,  627 

Exchange  Fire  Ins.  Co.  v.  Early,  837 

Exner  v.  Exner 823 

Fagen  v.  Davison 804 

Fagnau  v.  Knox 827 

Fallon  V.  Kelehar 1150 

F.  and  M.  Nat.  Bank  v.  Lang  . .  897 

Farcy  v.  Lee 877 

Farish  v.  Austin 384.  885,  857 

Farmers'  and  Mechanics'  Bank  of 

Genesee  v.  Wadsworth 867 

Faruam  v.  Feeley 827 

Faruham  v.  Benedict 914 

Farrell  v.  Parlier 599 

Faucett  v.  Nichols 799 

Fay  V.  Lynch 415 

Fay  V.  O'Neill 823 

Fearing  v.  Irwin 381 

Fecrick  v.  Conner 23 

Feickert  v.  Freisem 1045 

Fellows  V.  Kittredge 376 

Fellows  V.  MuUer 198 

Feltz  V.  Dorr 432,  1181 

Feltz  V.  Tiffany 335 

Ferguson  v.  Mass.  Mut.  Life  Ins. 

Co 884 

Ferrer  v.  Pyne 1323 

Ferris  v.  Holmes 893 

Fiebelv.Ober.sky 821 

Field  v.  Gibson 122 

Fields  V.  Bland 379 

Fiester  v.  Shepard 1314 

Filer,  Matter  of 250 

Finch  V.  (Carpenter 855,  .857 

FiiK-ke  v.  Rourke 760 

I'inley  v.  Fay 878 

Fire  Department  v.  Thompson..  347 

First  Nut.  Bank  v.  Dering 1184 

First    Nat.    Bank    v.    Whitehall 

Trans.  Co 1194 


First  Nat.  Bank  v.  Wilson 1182 

First  Nat.  Bank  of  Canandaigua 

V.  Garlinghouse 379 

First  Nat.   Bank  of   Oswego  v. 

Dun    1415 

Fischer  v.  Raab 1059 

Fish  V.  Dodge 620 

Fisher  \.  Dusenbury 258 

Fisher  v.  Hepburn 609 

Fisher  v.  Lyon 179 

Fisher  v.  N.  Y.  C.  and  H.  R.  R. 

R.  Co 776 

Fisher  v.  Stilson 381 

FisK  V.  Spring 178 

Fitch,  Matter  of 1370 

Fitzhugh  V.  Wiman 654 

Fitzgerald,  Matter  of 1023 

Fitzpatrick  v.  N.  Y.  and  M.  B. 

R.  R.  Co 823 

Flack  V.  The  State  of  New  York,  436 

Flagg  V.  Swift 904,  907 

Fleischman  v.  Bennett 86, 

765,  805,  813 

Fletcher  v.  Button 879 

Fletcher  v.  The  Troy  Sav'gs  B'k,  254 

Fliess  V.  Bulkle V 596 

FUnt  V.  Gault  ." 1422 

Flood  V.  ]\Ioore    1441 

Folger  V.  Fitzhugh 380 

Folwell  V.  Cambeis 1181 

Foot  V.  Croswell 342 

Foote  V.  Schmeder 405 

Ford  V.  Belmont 610 

Ford  V.  Ford 21 

Forsler  v.  Kane 1333 

Forsyth,  JNIatter  of 958 

Foster  v.  Bullock 282 

Fowles  V.  Bowen 805 

Fourth  Nat.  Bank  v.  Boynton  . .  274 

Fowler  v.  Butterly 255,  894 

Fowler  v.  Dorlon 799 

Fowler,  In  re 1023 

Fowler  v.  Lockwood 1333 

Fowler,  Matter  of 1091 

Fowler  v.  N.  Y.  Indemnity  Ins. 

Co 883 

Fowler  v.  Walter 1270 

Fox,  Matter  of  Estate  of 1388 

Fox  V.  The  Erie  Preserving  Co.,  1398 

Fox,  In  re 1338 

Frank  v.  Wessels 866 

Franklin  v.  Van  Colt 590 

Fraschieris  v.  Henriques 347 

Frazier  v.  Gibson 1896 

Frederick  V.  Decker 1179 

Fredericks  v.  Niver 1 198 

Freeinaiv  v.  Frank 280 

Freemen's  Nat.  Bank  v.  Smith. .  1174 

Freligli  V.  Brink 879 

Frciieii  v.  Powers 819,  325 

Friiik  V.  Tiie  Hampden'Ins.  Co.,  888 

Frisbee  v.  Fitzsimons 836 

Frlsbuu  V.  Jucobs 114 


xlviii 


Table  of  Cases  Cited. 


Frisbie  v.  Young 128 

Froude  v.  Froude 303 

Frost  V,  Kniglit 822 

Frost  V.  Koon 379 

Fuller  V.  Scribner 585 

Fulton  V.  Fulton 559 

Furman  v.  Van  Sise 817 

Gaflney  v.  Bigelow 239 

tiamman  v.  Berry 1063 

Gandall  v.  Finn 379 

Gane  v.  Gane 1060 

Gardner  v.  Gardner. .  147,  1059,  1073 

Gardner  v.  Smith 1421 

Gardinicr  v.  Knox 805 

Garner  v.  iManliattan  Bldg.  Ass'n,  486 

Gates  V.  Canfield 1397 

Gawthrop  v.  Leary 329 

Gawtry  v.  Doane 307,  309 

Geery  v.  Gcery 740 

Geery  v.  "Webster 95 

Geibv.  Icard 1446 

GeneseelR.  Nat.  B'k  v.  Mead,  741,  746 

Genet  v.  Mitchell 342 

Gerard  v.  Gerard 701 

Gei'aty  v.  Stern 825 

Germain  v.  Brooklyn  L.  Ins.  Co.,  882 
German  Exchange  Bank  v.  Com- 
missioners of  Excise 255 

German  Sav.  Bank  v.  Carrington,  857 

Germond  v.  Germond 682 

Getting  v.  Mohr 1037 

Gibbs  V.  Queen  Ins.  Co 58 

Gibson  v.  Erie  Railway  Co 782 

Gihon  V.  Levy 902 

Gilbert,  In  re    1104 

Gilbert  v.  Rounds 824 

Gilchrist  v.  Comfort 4,  72 

Gilhooley  v.  Washington 879 

Gile  V.  Libby 799 

Gill,  Matter  of 1098 

Gillett  V.  Bate 740,     754 

Gillett  V.  Roberts 846 

Gillett  V.  Staples 741 

Gillis  V.  Kreuder 442,  1062 

Gilnian  v.  Gilman 1333 

Glacius  V.  Fogel    569,  727 

Glaubensklee  v.  Hamburgh  and 

American  Packet  Co 106 

Glendening  v.  Canary 329 

Glenney  v.  Stedwell 274 

Goddard  v.  Stiles 1201 

Godefroy  v.  Jay 79 1 

Godfrey  v.  Godfrey 193 

Goodall  V.  Demarest 1181 

Goodenough  v.  Davids 1061 

Goodwin  v.  Bunzl 656 

Goodwin  v.  Griffis 841,  1021 

Goodwin  v.  Simonson 569 

Goodwin  v.  Young 891 

Goodyear  Dental  Vulcanite  Co. 

V.  Friselle 857 

Gordf.n  v.  Hostetter 845 


Gorman  v.  K  Y.  C.  and  H.  R. 
R.  R.  Co 783 

Gorham  v.    South  Boston   Iron 

Co 315,     316 

Gorton  v.  De  Angelis 825 

Gostenhofcr  v.  Chiir 799- 

Gouraud,  Matter  of  will  of,  etc., 

12,      74 

Graber  v.  Ilaaz 1252 

Graham  v.  Cammon 878' 

Graham  v.  Schmidt 37 

Graham  v.  Scripture 857 

Graham  v.  The  People 98& 

Grant  v.  Graham 600,     989 

Grantman  v.  Thrall 666 

Grassmuck  v.  Richards 1193 

Grattau  v.  Metropolitan  Life  Ins. 

Co 882 

Graves  v.  Brinkerhoff 381 

Gray  v.  Durlaod 817 

Greene,  Matter  of 703 

Greene  v.  Hallenbeck 857 

Greene  v.  Greene 366 

Greene  v.  Martine 230,  232,     732 

Green  v.  Howard    384 

Green  v.  Milbank 372 

Green  v.  Raymond 98 

Green  v.  Squires 68 

Green  v.  "Warren 239 

Green  v.  AVaite 1396 

Greenbaum  v.  Dw^'er 1213 

Greenfield  v.  Mass.  Mut.  Life  Ins. 

Co 98 

Greenhough  v.  Greenhough  ....   1310 
Greensward  v.  Union  Dime  Sav- 
ings Inst 282 

Greenvault  v.  Davis 888 

Greer  v.  Allen 274 

Griffin  v.  Griffin 699 

Griffin  v.  Sarsfield 1370 

Griggs  V.  Howe 897 

Grimes  v.  Davison 124 

Grimes  v.  Hillenbrand 899 

Grinnell  v.  Maclean 514 

Grim  wood  v.  "Wilson ,     250 

Griswold  v.  Dexter 348 

Griswold  v.  Tompkins 1195 

Groat  V.  Moak 621 

Grocers'  Bank  v.  Bayaud 1181 

Groshon  v.  Lvon 95 

Gross  V.  Clark 259 

Grow  V.  Garlock 414 

Gnil)b  V.  Hamilton 1296 

Guilleaume  v.  Rowe  . .  436,  823,     894 

Guion  V.  Underbill 1242 

Gunning  v.  Applclon 805,     813 

Gunning  v.  Lockman 1215 

Gustaf  V.  Am.  Steamship  Co  . . .     278 

H.,  In  re 1059 

Haas  V.  Craighead 72 

Haddon  v.  St.  Louis,  etc.,)R.  R. 
Co 95 


Table  of  Cases  Cited. 


xlix 


Hagadorn  v.  Raux 914 

Haight,  In  re 1122 

Haight  V.  Webster 827 

Haines  v.  Herrick 98 

Hale  V.  Andrus 864 

Hale  V.  Rogers 273,     274 

Hall  V.Brooks 176 

Hall  V.  Campbell 1328,  1333 

Hall  V.  Emmons 410 

Hall  V.  Hall 346 

Hall  V.  Holt 100 

Hall  V.  Richardson 95 

Hall  V.  Suydam 827 

Hall  V.  Taylor 857,  1081 

Hall  V.  U.  8.  Reflector  Co 1441 

Hall  V.  Western  Trans.  Co 879 

Haller,  Matter  of 16 

Hallock  V.  Dominy 833 

Hallock  V.  Miller 804,  805,     810 

Halsev,  Matter  of 1214 

Halsted  v.  Halsted 532 

Halsted  v.  Seaman 1150 

Hamersley  v.  Hamersley 530 

Hamilton'  v.  Eno 805,     813 

Hamilton,  In  re 1168 

Hamilton  v.  Lomax 821 

Hamilton  v.  Morris 5t0 

Hannahs  v.  Hannahs 1333 

Hancock,  Matter  of    1206 

Hancock  v.  Rand 799 

Hand  v.  Burrows 286,     289 

Harbison  v.  Van  Valkenburgh . .     244 

Hardenl)rook's  Case 271 

Harder  v.  Harder 620 

Plarding  v.  Harding 366 

Hardt  v.  Schulting 419 

Hardy  v.  Peters 274 

Harmon  v.  Hope 372,     374 

Harpendiug  v.  Shoemaker 879 

Harrington  v.  Libby 1293 

Harris  v.  Hiscock 1142 

Harris,  In  re 1326 

Harris  v.  Van  Wart 323,     341 

Harrison  v.  Brooklyn  B.  and  C. 

1.  R.  R.  Co 487 

Harrison  v.  Clark 1245 

Harri.son  v.  Gibbons 379 

Harrison  v.  Wilkins 656 

Hart  V.  Frame 791 

Hart  V.  Hudson  River  Bridge  Co. ,     782 

Hartman  v.  Spencer 315 

Ilarward  v.  Hewlett 1333 

Hasketr,  In  re   1292 

Hasler  v.  Johnston 1440 

Hassey  v.  Keller 1242,  1296 

Hastings  v.  Drew 741 

Hastings  v.  Westchester  Fire  Ins. 

Co 884 

Haswell  v.  Linck 62 

Hatch  v.  Lewis 791 

Hathaway  v.  American  M.  S.  Ex- 
change       904 

Hatfield  v.  Lasher 805,    813 

O 


Hatfield  v.  Marcy 329 

Havemeyer  v.  Fuller 805,     813 

Haviland  v.  Halstead 821 

Haviland  v.  Kane 1023 

Hawes  v.  Burr 1180 

Hawkins  v.  Dutchess  &  Orange 

Steamboat  Co 789 

Hawkins  v.  Peterson 1397 

Hayes  v.  Bowe 823 

Hayes  v.  Maytham 1378 

Hayes  V.  McClelland 1195 

Haynes  v.  Rudd 894,     899 

Hays.  Adm'r,  v.  Miller 788 

Health  Department  v.  Police  De- 
partments, etc 625 

Health  Department  of  N.  Y.  v. 

Knoll 776 

Healy,  In  re 271 

Healy  v.  Twenty-Third  St.  R.  R. 

Co 1444 

Hecht  V.  Levy 123,  124,     838 

Hedding  Meth.  Ep.  Church  Mat 

ter  of 1318 

Heegv.  Licht 620,     788 

Hegerich  v.  Keddie 783 

Heilman  v.  Jones 1274 

Heiler  v.  Walsh 429 

Hein  v.  Davidson    456 

Heishon   v.  Knickerbocker  Life 

Ins.  Co 68,     278 

Hendrickson  v.  Ladd 1300 

Hencken  v.  James 569 

Hennequin  v.  Clews 896 

Henry  Bergh's  Case    3 

Henry  v.  Mead    296 

Herrick  v.  Lapham 804 

IIessl)erg  v.  Riley 456,     457 

Hetzel  V.  Tannehill  S.  M.  Co. . . .      49 

Heynev.  Blair 827 

Heyde  v.  Heyde 682 

Hickox  v.  Weaver 5,     398 

Higgins  V.  Allen 153 

Iliggins  V.  Callahan 1441 

Iliik-r  V.  B.  and  M.  R.  R.  Co. . . .       45 

Hill  V.  Berry 890 

Hill  V.  Burke 395,  414,     419 

Hill  V.  Covell 347,     846 

Hill  V.  Finney 791 

Hill  V.  Thacter 86 

Hills  V.  Thr  Peekskill  Sav.  B'k. .     415 

ilinman  v.  Hare 814 

lliiichey  v.  Manhattan  R.  Co 788 

Iliiukley  v.  Kreitz 414 

H.,  In  re 1059 

Hirsch  v.  Hutchinson 193 

Ilitchman  V.  Ba.xter...   778,  914,   1378 

Hobart  v.  ilobart 76 

Hoe  V.  Sanborn 892 

ITotTmaii  v.  Burke 586,     627 

ir<)fTmnM  v.  Coiuicr 1(J 

Hi.lTinan  v.  Dunlop {»30 

IIolTmaii  V.  Lowell 1444 

Hoirniaii  V.  Ridley 1446 


1 


Table  of  Cases  Crn:D. 


Hoflfman  v.  ITnion  Fcrrv  ("o.  of 

Brooklyn ' 789 

llogle  V.  N.  Y.  C.  and  11.   li.  K. 

Co 788 

Holleiibeck  v.  Dounell 570 

Holleubcck  V.  Clow 684 

Holliday  v.  Parker 230,     817 

Hollisier  V.  McNeil 414 

Holly  V.  Graf 76G 

Holmau  v.  Dord 882 

Holmes  v.  Broughton 735 

Holme*  V.  McDowell 210 

Holmes  v.  Russell 384 

llolsmau  V.  De  Gray 885 

Holsman  v.  St.  Joha 230,     232 

Holt  V.  Ward 822 

Horaan  v.  Earle 821 

Homoepathic  Mutual  L.  Ins.  Co. 

V.  Sixbury 570 

Hopkins  V.  Nelson 379 

Hopjxjr  V.  Hopper P84 

Hood  V.  Hood 1245,  1296 

Hornby  v.  Cramer 11 57 

Hortou  V.  Sbipherd 857 

Hosley  v.  Black 875 

Houghkirk   v.   Pres.,    etc.,   Del. 

and  Hudson  Canal  Co 783 

Ho  vey  V.  McLean 1262 

Howard  v.  Dougherty 1290 

Howard  v.  Hatch 1159 

Howe  Machine  Co.  v.  Pettibone,       65 

Howell  V.  Adams 347 

Howell  V.  Earp 746 

Howell  V.  Leavitt 487,     504 

Howell  V.  Mills 325 

Howe  Sewing  M.  Co.  v.  Haupt,   1396 

Hovt  V.  Hoyt 724 

Hoyt  V.  .Jackson 1274,   1319 

Hoyt,  Matter  of    ...  1274,  1318,  1319 

Hubbard  v.  Hubbard  1060 

Hubbell  V.  Meigs 886 

Hudler  v.  Golden 038 

Hudson  V.  Swan 650 

Hudstn,  In  re 1301 

Hughes  V.  Hughes 514 

Hulbert  v.  McKay 594.     596 

Hulbert  v.  Young 666 

Hull  V.  Ely 910 

Hulett  V.  Swift 799 

Humerton  v.  Hay 414 

Hunt  V.  Bloomer 325 

Hunt  V.  Hudson  River  Fire  Ins. 

Co 884 

Hunt  V.  Hunt  94 

Hunt  V.  Peake 822 

Hunter  v.  Dash  wood 111!) 

Hunter  v.  Hatfield 1092 

Hurd  V   Ranuibal  and  St.  Joseph 

R.  R.  Co 1232,  1361 

Hulburt  V.  Banks 910 

Hurlburt  v.  Durant 1314 

Hurst  V.  Litchtield 875  | 

Hutchinson  v.  Brand 841 ! 


Hutchinson  v.  Lawrence 27^ 

Hutchins  v.  Smith 620 

Hyatt  V.  Roach 335 

Hyatt  V.  Seeley H37 

Hyatt  V.  Tayl  u- 799 

Hyde  v.  Salg 1O8 

Hynes  v.  Patterson 846 

Ingallsbee  v.  Wood 798 

Ingersoll  v.  Bostwick 325 

Ingerson  v.  Miller 8 1 7 

Ingram  v.  Bobbins 379 

Innian  v.  McNeil 1418 

In  the  ]\Iatter  of  an  Attorney 4 

In  the  Matter  of  laying  out,  etc., 
of  Livingston  street  in  the  vil- 
lage of  Rhinebeck 29 

j  Irwin  V.  Chambers . .  1181 

Irwin  V.  Judd 125 

Isaacs  V.  Isaacs 1060,  1062 

Iseman  v.  jVh-res 38 1 

Ives  V.  Holden 193 

Jack  V.  Cashin 1087 

Jackson,  In  re 1229 

Jackson  v.  Prime 748 

Jacobson  v.  Doty  Plaster  Manuf. 

Co 1181 

Jaffrav  V.  Brown 171,  207,  626 

Jaillard  v.  Tomes 108 

James  v.  Beesley 443 

Jamison  v.  Citizens'  Sav.  Bank. .  297 

Jarvis  v.  Driggs 1047 

.lencks  v.  Alexander  . 1107 

Jencks  v.  Van  Brunt 350 

Jenkins  v.  Continental  Ins.  Co. .  604 

Jenkins  v.  Fahey 514,  1122 

Jenkins  V.  Smith 128 

Jenkins  v.  Young 1836 

Jerome  Co.  v.  Loeb 148 

Jessop  v.  ]\Iiller        846 

Jessurun  v.  Mackie,  1032,  1046, 

1055,  1088 

Jewett  V.  Banning 825 

Jewett  V.  Swann 1172 

Jex  V.  Jacob 384 

Joel  V.  Ritterman 1226,  1227 

Johnson  v.  Adams  Tobacco  Co.,  93 

Johnson  v.  Carnlej' 654,  655 

Johnson  v.  Donnell 599 

Johnson  v.  Elwood 154 

Johnson  V.  Jenkins 821 

Johnson  v.  Lynch 285,  1448 

Johnson  v.  ]\Iallory 109 

Johnson  v.  ]\IcConnel 825 

Johnson  v.  Snyder 766 

.Johnsoi    v.  Wiiitlock 325 

Johnston  v.  Lewis 255 

Johnston  v.  Stimmel 255 

.Jones  V.  Andei'son 26 

.Jones  V.  Demady 1085 

Jones  V.  Hoyt . .'. 295,  296 

Jones  V.  Ludlum 98 


Table  of  Cases  Cited. 


Jones,  Matter  of 1062 

Jones  V.  Newman 1415,  1418 

Jones  V.  People   990 

Jones    Stationery,    etc.,    Co.    v. 

Case 1416 

Jones  V.  Welwood 1143,  1150 

Jones  V.  U.  S.  Slate  Co 61 

Jones  V.  Zoller 549 

Jordan  v.  Yolkenlng 401 

Judd   Linseed,  etc.,   Oil  Co.    v. 

Hubbell 351,  384,  915 

Judd  V.  O'Brien  and  Waddle  . . .  1157 

Judd  V.  Smith *  868 

Jurgenson  v.  Hamilton...  1181,  1187 

Jutte  V.  Hughes 620 

Kain  v.  Delano 335 

Kaiser  v.  Kaiser 673 

Kanouse  v.  Martin 989 

Kappel  V.  Yotz 1023 

Karner  v.  Mjiens 300 

Katt  V.  Germania  Ins.  Co 332 

Katz  V.  Kuhn 108,  406 

Kay  V.  Churchill 115 

Kee  V.  McSweeney 1 378 

Keep  V.  Keep 1147 

Keiley  v.  Colton 797 

Keiley  v.  Dusenbury 740 

Kcllinger,  Matter  of 1227 

Kellogg  V.  Cowing 379 

Kellogg  V.  Olmsted 732 

Kellum  V.  McKoon 307 

Kelly  V.  N.  Y.  and  Manhattan  B. 

R.  R.  Co 1397 

Kelly  V.  Sheehan 70,  423 

KellV  V.  Sheehy 626 

KfellV  y.  AYaterbury 805,  813 

Kelly  V.  West 124o 

Kelsej^  V.  Darrow 1 145 

Kelsey,  Estate  of 727 

Kelsey  v.  Van  Camp 1355 

Kemp  V.  Burt 791 

Kemp  V.  Dickinson 286 

Kendall  v.  Stone 804 

Kennedy  v.  Kennedy 694,  700 

Kennedy  v.  Mayor,  etc. ,  of  N.  Y. ,  381 

Kennedy  v.  Norcott 1198 

Kennedy  v.  N.  Y.  Life  Ins.  and 

Trust  Co 1213 

Kennedy  v.  Ryall 782,  783 

Kendall  v.  Stone 802,  812 

Kennedy  v.  The  Mayor,  etc.,  of 

New  York  381 

Kendall  v.  Tread  well 600 

Kenrier  v.  Morrison 823 

Kent  V.  Sturges 1041 

Kerr  v.  Dou;rherty 723,  '  724 

Keyser  v.  Kelly 727 

Kerr  v.  Kreuder 442,  443 

Kcrriiran.  flatter  of 1365 

Kctfjfjis  V.  Orfcn 1319 

Kidd  V.  Curry     384,  386,  410 

KifT  V.  Younians H25 


Kiersted  v.  Orange,  etc.,  R.  R. 

Co 878 

Kilmer  v.  Bradley 4i3 

Kilmer  v.  Hathorn 70,  428 

King  V.  Arnold  123 

King  V.  Fitch 846 

King  V.  Phillips 625 

Kinney  V.  Roberts     274,  814 

Kingsland  v.  Stokes 722 

Kingsley  v.  City  of  Brooklyn...  3o5 

Kinney  v.  Roberts  &  Co 814 

Kinzey  y.  Kinzey 700 

Kip  V.  ]\IcLean 730 

Kipp  y.  Delamater 253 

Kirby  v.  Fitzgerald 379 

Kirkland  v.  Moss 274 

Klein  v.  Wolfsohn 672 

Kliuke  V.  Levey 1181 

Klock  y.  Cronkhite 1157 

Kloppenberg  y.  Neefus 436 

Kuapp  V.  Browne 123 

Kniifen  v.  McConnell 821 

Knight  y.  Wilcox 817 

Knowles  v.  Toone 893 

Knowlton  v.  Bannigan 2'*5 

Koenig  v.  Nott 825 

Kohlbrenner  v.  Elsheimer 1398 

Kopper  V.  Willis 799 

Korn  y.  Schedler 799 

Kraus  y.  Averill 1214 

Krekeler  v.  Rilter 903 

Krom  y.  Kursheedt 1446 

Kromer  v.  Heim 896 

Kupfer  y.  Frank 437 

Kuuz  y.  Bachman 626 

Labar  v.  Koplin 825 

La  Bau  v.  YanderbiU 1274,  1319 

Lachenmeyer  y.  Lachenmeyer  . .  127 

Ladd,  Estate  of 1301 

Ladd,  In  re 1334 

Ladue  v    Andrews 105 

Lafond  y.  Deems 211 

Lake  \.  Tysen 878 

Lamar,  Estate  of 1250 

Lambert  y.  Craft 1312,  1314 

Lambert  y.    Staten  Island  R.  R. 

Co 790 

Lamkin  v   Douglass 163 

Lammond  \.  Yolans 716 

Lamperl.  In  re 128 

Lang  V.  Otis 450 

Langboin,  Estate  of 1301 

Langdon  y.  Evans 413 

Langdon  v.  fhiy 825 

Lange  y.  Benedict 8~j| 

Langley" V.  Warner 3^7 

Lanning  V.  Carpenter '^^^ 

Laniz  V.  Buckinirham 600 

Lansimr  V    Mickcis 1446 

I.ansiM.iih  V.  l>i.ikcr ^25 

liiirncd  V.  firidiu 271 

Lnrson,  Mailer  of  . . ; 953,  067 


lii 


Table  of  Cases  Cij'ed. 


Latham  v.  Richards 766,    910 

Lathers  v.  Fish 381 

Ijaiirent.  Mutter  of 953 

Lauterjuni!:,  Matter  of 992 

Lavelle  v. '  Skclly. 338 

Lawreace  v.  Campbell 841 

Lawreace  v.  Spence 817 

Lawtoii  V.  Groeu .     l.')4 

LawtoQ  V.  Sailer 597 

Leavy  v.  Granliier 330 

Learv,  Matter  of 990 

Le  Baroii.  Estate  of 1336 

Ledwith  v.  Ledwith 1358 

Led  with  v.  Uuiou  Trust  Co 1365 

LefTerts  v.  Silsby 96 

Lelliiigwell,  Matter  of 1321 

Legu^xtt.  In  re 1327 

LeiiinaiL'.'  v.  Griswold 1199 

Leliinaii  v    Williams 173 

Leichtwciss  v.  Traskow 821 

Leonard  V.  Clinton 746 

Leonard  V  Columbia S.  Na v.  Co.,     881 

Leonard  v.  Mulry 325 

Leseuer  v.  Leseuer 684 

Leslie  v.  Lorillard 95 

Levy,  In  re 1446 

Levy  V.  Kaini   21,     134 

Levy  V.  Loeb 274 

Levy.  Matter  of 1446 

Lewishon  v.  Drew 740 

Lewis  v.  Hitchcock 799 

Lewis  V.  Maloney  . .    95,     734 

Lewinski,  Matter  of 953 

Lewis  v.  Watson 1240 

Lichtenbergh  V.  Herdtfeller 746 

Liegeois  v.'  McCrackan 333,     340 

Like  V.  McKinstry 812 

Lim  ner,  In  re .    1092 

Linden  v.  Graham 804,     812  j 

Lindsay  v.  Sherman 1179  t 

Lipe  V.  Eisenlerd  ...    817 . 

Littaeur  v.  Goldman 892 

Little  wood  v.  Tbe  Mayor 783 

Livingston  v.  Arnoux 472 

Livingston  v.  Cheetham 342 

Livingston  v.  Mildrum 581 

Livingston  v.  Morrissey 1400 

Livingston  v.  Oaksmith     896 

Livingston     Street,     Rhinebeck, 

Matter  of 29 

Li  vermore  v.  Wortmaii 1293 

Locke  V.  Pilley 1150 

Lockwood  V.  Brantly 1213 

Lockwood  V.  Fox 253 

Lockwood  V.  Lockwood 1319 

Lockwood  V.  Thorne 878 

Loeb  V.  Willis  .    569 

Long  V.  Olmsted 1347 

Long  V.  AVarren 837 

Loof  V.  Lawton 791 

Loomis  V.  People 1190 

Lorenzo  V.  Deery...   1143,  1147,  1156 
Losee  v.  Buchanan 788 


Lovlan  v.  Briggs 890 

Lowery  v.  Clinton 746 

Luce  v.  Alexander 98 

Luilewig  V.  Ioniser 274 

Ludwig  V.  Glaessel 890 

Ludlow,  In  Matter  of 1315 

Luhrs  V.  Connors 1043 

Lund  v.  Seaman's  Savings  Bank,  855 

Lupton  V.  Smith 191 

Lutes  V.  Briggs 910 

Lynch  v.  :Met'rop()litan  R.  R.  Co.,  823 

Lynch  v.  Murray 888 

Lynch  v.  McNally 819 

Lynch  v.  Patchen 1314 

Lynch  v.  St.  John 642 

Lyon  V.  Blakesly    163 

Lyon  V.  Lyon 314,  584 

Lyons  v.  Murat 108 

Lyons  v.  Tovvnsend 814 

Maas  V.  O'Brien 841 

Macaulay,  Matter  of,  1213,  1314, 

1316,  1350,  1318,  1333 

Mack  V.  Austin 570 

Mackin,  Estate  of 1338 

Maclay  v.  Sands 97 

Magie'  v.  Baker 325 

IMagown  v.  Sinclair 335 

Magnus  v.  Trischett 334 

Mahon  v.  Mahon  . . .   1060,  1063, 

1068,  1075,  1077 

Mahnken  v.  Pape 1181,  1183 

Mailler  v.  Exp.  Propeller  Line..  789 
Mairs  v.  Manhattan  Real  Estate 

Association 631 

Maloney  v.  Dows 823 

Malone  v.  Hathaway 783 

Malloy  V.  Vanderbilt 731 

Manchester  v   Herrington 914 

Mandeville  v.  Reynolds 857 

Mang,  In  re 79 

Manhattan  Co.  v.  Lydig 343 

Manning  v.  Evans 1203 

Manning  v.  Gould 414,  419 

Manning  v.  Keenan 643 

Manning  v.  P   H.  Iron  Co 783 

Manning  v.  Tyler 897 

Manton  v.  Pool 163 

Maples  V.  Mackey 61 

Marcele  v.  oa?.zman  1127 

Marine  Bank  '"^f  Chicago  v.  Van 

Brunt 442 

Mark  V.  City  of  Buffalo... .  379,  1441 

Marrin  v.  Marrin 379 

Marsh  v.  Avery 1333 

Marsh  v.  Falker 836 

Marsnall  v.  Davies 569 

Marshall  v.  "Wvsong 1328 

Martin  v.  Duke 1262 

Martin.  ^Matter  of  will  of. .   1232,  1333 

Martin  v.  Rector 384,  386,  4S7 

Mai-tin  v.  Wind-sor  Hotel  Co 3?5 

Martine  v.  Lowenstein 40 

Ma  An  v.  Elwcod 35S 


TABLE  OF  Cases  Cited. 


liii 


Marvin  v.  Brewster  Iron  Mining 

Co 410 

Marx  V.  Spaulding 1180 

Mason  v.  Hackelt 1183 

Mason  and  Hamlin  Co.  v.  Pugs- 
ley  289,  291,  299,  300 

Mason  v.  Luddington 337 

Masten  v.  Deyo  827 

Aiasteu  v.  Olcott 1397 

Mather  V.  Hannauer 123,  127 

Matson  v.  Farm  Build.  Ins.  Co.,  347 

Matter  of  Watson  v.  Nelson 3 

Matthews  V.  Tufts 271 

Mattison  v.  Demarest 737  757 

Maule  V.  Crawford 897 

Mauranv.  Hawley..   1210,  1248, 

1304,  1305 

May  V.  Moore 333 

Mayor,  etc.,  of  Albany,  Ex  parte,  991 

Mayor  v.  Coffin 253 

Mayor  of  N.  Y.  v.  Eisler 778 

Mayor,  etc.,  v.  Genet 166,  169 

^layor  v.  James 115 

Maxwell  v.  Pratt 96 

Mayor  v.  N.  Y.  and  S.  I.  Ferry 

Co 1062,  1073 

McAdams,  In  re 1104 

McAllen,  In  re 73 

McBride  v.  Lewisohn 580 

McCall  V.  Frith 1444 

McCardle  v.  McGinley 828 

McCarter,  Matter  of  Estate  of  . . . 

1351,  1353,  1354 

McCarthy  v.  McCarthy 62 

McCleary  v.  McCleary 366 

McCall  V.  Sun  Mutual  Ins.  Co  . .  288 

McCloskey  v.  Stewart 746 

McComb  V.  Weaver 1059 

McCool  V,  Boiler 68 

McCormick  v.  Penn.  Cent.  R.  R. 

Co 846 

McCormick  v.  Pickering 896 

McCreery  v.  Willett 841 

McCully  V.  Heller 1212 

McDermott  v.  Hennesy 597 

McDonald  v.  Davis 766 

M.'Donald  v.  Edgerton 799 

McDonald  v.  Mallory 783 

McElvey  v.  Lewis 210 

^IcEncroe  v.  Decker    98 

:vrcEvoy  V.  Appleby 740,  748 

McEwen  v.  Brewster 74 -< 

McFurren  v.  St.  John 228 

McGowan,  Matter  of 1374 

McGowan  v.  Morrow 530 

McGowan  v.  Newman 337 

McGovern  v.  N.  Y.  C.  and  H.  R. 

R.  R.  Co 783 

McGregor  v.  Brown 614 

McGuckin  v.  Sister 805 

McGuflin  V.  Diiismore 904 

McGinues.s  v.  The  Mayor,  etc.  98 

Mclntvre,  In  re 1310 


Mclntyre  v.  Sanford 429 

Mclntyre  v.  Strong 1401 

McKay  v.  Reed 253 

McKelsey  v.  Lewis 211,  219 

McKeown  v.  Fagan 1312 

McKeown  v.  Fish 559 

McKernan  v.  Robinson 857 

McKieruan,  Estate  of 1314 

McKiuney  v.  Collins 359 

]\IcKowu  V.  Hunter 829- 

]\IcLaughlin  v.  Crawford 509 

McLaughlin  v.  Teasdale 587 

jVIcMoiuiale  v.  Conkey 286 

:\[cMurray  V.  McMurray...  384,  385 

:\IcXally  V.  Brown 734 

McNeary  v.  Chase 1384 

McNeil,  Ex  parte 271 

McNish  V.  Bowers 324,  325 

McNulty  V.  Hurd 1312 

McNulty  V.  Solley 901,  1143 

McParland  v.  Bain 857 

McPherson  v.  Cox 894,  1143 

Mead  V.  Jenkins 513,  733,  13^6 

Mead  v.  Mitchell 533 

j\Iead  V.  Sommers 1304 

i\Iead  V.  Stratton 741,  890 

Meakim,  Estate  of 1338 

Mechanics'  and  Traders'  Bank  v. 

Healy 1190 

Mechanics'  Bank  v.  Straiton 868 

Meeeh  v.  Calkins 2b6 

Meehan  v.  Harlem  Sav.  Bank. . .  98 

Meeker  v.  Crawford 1328 

Meier  v   Met.  Gas-Light  Co 776 

Meuagh  v.  Whitwell 450 

Mercer  v.  King 791 

Merguelle  v.  Note  Co 243 

Merchants'  Exchange  Nat.  Bank 
N.  Y.  V.  Commercial  Ware- 
house Co 897 

Merchants'  Insurance  Co.  of  N. 

Y.  V.  Hinman 730 

Merchants'  Nat.  B'k  v.  Mosher. .  133 

Merrill  v.  Grinuell 315 

Merritt  v.  Vigelius 835 

Mersereau  v.  Ryerss 732 

Merwin  v.  Hamilton 875 

Messenger  v.  Fourth  Nat.  Bank 

of  New  York 329 

Met.  Elevated  R.  R.  Co.  v.  Man- 
hattan R.  R.  Co  143,  144 

Met.  Life  Ins.  Co.  v.  Meeker 894 

Metraz  v.  Pearsall  97 

Met.  Trust  Co.  v.  Rogers,  1304,  1306 
Mctzger  v.  Attica  and  Arcade  R. 

H.CO ;io 

Michaels  v..  Abrahams 4.i» 

Meyer  v.  Aniidon 8.5b 

Meyer  v.  Clark ^-^ 

Miles.  In  re ^•^•»'* 

Millar  v.  Fitziribbons '•"'j 

Miller  v.  Adams ^23,  llHl 

Miller  v.  Barber 837,  838 


liv 


Table  of  Cases  Cited. 


Miller  v.  Brenham Gl 

Miller  V,  Earle 379 

Miller  v.  Levy 514 

Miller  v.  Lyon 1195 

Miller  v.  McCloskey Db 

Miller  v.  Miller 748 

Miller  v.  Schuyler 897 

Miller  v.  Wilson 262 

Milliken  v.  Dart , 100 

Mills  V.  Bliss 207 

Mitcholl  V.  Allen 700 

Mitchell  V.  Barnes 211 

Mitchell  V.  Bowne 509 

Mitchell  V.  Mitchell 08 J 

Mitchell  V.  Wester velt 205 

Mitchell  V.  Van  Buren 379 

Mitnacht  v.  Cocks 10:^)7 

Moffat,  Estate  of 1327 

Moffatt  V.  iMcLaughliu 513 

Moiarrietta  v.  Saenz 68 

Moiler  V.  Wells 1185 

Monaniue  v.  31onarque ....  514,     523 

Moore  v.  liegeman 6^9 

Moore  v.  Littel 523 

Moore  v.  McMahon 1023,  1077 

Moore  v.  Moore 366,     703 

Moore  V.  Noble 837,     83':J 

Moore  V.  Shaw 569,     582 

Moorhouse  v.  Hutchinson,  1216, 

1250,  1284,  1296 

Moran  v.  Morrissey 110 

Moran  v.  Seacord 1023 

More  V.  Deyoe 230,    486 

3Iorenus  v.  Crawford 891 

Morey  v.  Tracy 919 

Morford  v.  Davis 897 

Morgan  v.  Fillmore 255 

Morgan  v.  Holladay 459 

Morgan  v.  Morgan 1262,  1355 

Morgan  v.  Smith 920 

Morgan  v.  Van  Kohnstamm  ....  1201 

Moriarty  v.  Bartlett 890 

Morris  v.  First  Nat.  Bank,  1183,  1203 

Morrell,  Matter  of 1132 

Morrell  v.  Morrell 684 

Morris  v.  Whelan 92i 

Morss  v.  Hasbrouck 250,     414 

Morss  V.  Purvis 472 

Moses,  Matter  of 953 

Mott  V.  Union  Bank  of  City  of 

New  York 823 

Mount,  In  re 1335 

Mowers  v.  Fethers 798 

Mowry  V.  Sanborn 1157,  1159 

Moyer  v.  Weil 1800 

Mudge  V.  Gilbert 282 

Muldoon  V.  Rickey 828 

Muldoon  V.  Pierz 1184 

Muller  V.  McKesson 820 

Muller  V.  Stnippman. .  507,  514,  1122 

Mulvehall  v.  Millward  817 

Mumford  v.  Coddington 1814 

^lundorff  v.  Wan!j;ler 1244 


Murray  v.  Kirkpatrick 285 

Murray  v.  Minier 316 

Murray  v.  N.  Y.  Life  Insurance 

Co 347,  883 

Murjihy  v.  Loomis 487 

Murphy  v.  N.  Y.  C.  and  H.  R. 

K.  K.  Co 783 

Muser  v.  Lissner 839 

Musgrave  v    Sherwood 154 

Mutual  Life  Ins.  of  New  York  v. 

Iloyt 569 

Mutual  Life  Ins.  Co.  v.  Nat.  B'k 

of  Newuurgh 148 

Mutual    Life    Insurance    Co.   v. 

Truchtnicht 570 

Nagle  V.  Taggart 62 

Nat.  B'k  of  Auburn  v.  Lewis  . . .  897 

National  Biuik  v.  Spencer..   378,  384 

Nat.  B'k  V.Whitehall  Trans.  Co.,  1194 

Nat.  B'k  v.Van  Derwerker 904 

Nash  v.  Wetmon; 330 

Naylor  v.  Naylor  . . .   1059,  1062, 

1063,  1065 

Neary  v.  Bostwick 888 

JSebenzahl  v.  Townsend 823 

Needles  v.  Howard 799 

Negus  V.  City  of  Brooklyn 620 

Nehrboss  v.  Bliss 471 

Neil  v.  Thorn 827 

Neliis  V.   N.  Y.   C.   R.  R.  Co., 

776,  777,  780 

Netzel  V.  Mulford 1184 

Neu  V.  McKechnie 890 

Neuberger  v.  Webb 108 

Neusbaum  v.  Keira 379 

Newell  V.  Cutler 1197 

New  England  Iron  Co.  v.  N.  Y. , 

L.  audL  Co 243 

iS'ewhall  v.  Appleton 329 

Newborn  v.  Bowe 457 

Newins  v.  Baird 516 

Newton  v.  Porter 300 

Nichols,  In  re 727 

Nichoi  V.  McLean  . . .  934,  1232,  1360 

Nichols  V.  Nichols »5 

Nickelson  v.  Wilson 899 

Nickley  v.  Thomas 831 

Noble  V.  Cromwell 520 

Noland  v.  Noland  1062 

Nones  V.Hope  Mut.  Life  Ins  Co.,  93 

Norris  v.  Corkhill 805 

Northern  Bank  of  Kentucky  v. 

Wright 915 

Norton  v.  Vultee  .   885 

N.  Y.  G.  and  I.  Co.  v.  Rogers  . .  435 
N.  Y.  Life  Ins.  Co.  v.  Universal 

Life  Ins.  Co 709 

N.  Y.  Nat.  Ex.  Bank  v.  Jones  . .  899 

O'Brien  v.  Browning 757 

O'Brien  v.  Comm.  Ins.  Co 300 

O'Brien  v.  Hagan 230 


Table  of  Cases  Cited. 


Iv 


O'Brien  v.  Hashagen  .   463 

O'Brien  v.  Mechanics'  and  Trad- 
ers' Fire  Ins.  Co 171 

O'Dea  V.  O'Dea 699 

O'Gara  V.  Kearney 387,  410,  1059 

Ogdensburgli,  etc.,  R.  R.  Co.  v. 

Vermont,  etc.,  R.  R    Co 93 

Olmsted  v.  Vredenburgli 432 

O'Xeil  V.  Bender 68 

O'Neil,  In  re 5 

Opdyke  v.  Marble 243 

O'Reilly  v.  Good 63(3 

O'Reilly  v.  King 1138,  1139 

Orser  v.  Glenville  Woolen  Co. . .  234 

Orvis  V.  Goldschmidt 105 

Orleans  County  National  Bank  v. 

Spencer 915 

Organ  v.  Wall 72 

Orr  V.  McEwen 915 

Orvis  V.  Dana  Ill,  113 

Osborne  v.  Mc Alpine 1333 

Osborn  v.  McCloskey 39 

Osborn  v.  Merwin 1159 

Osborne  v.  Sellick 258 

O'SuUivan  v.  Connors 414 

Otis  V.  Spencer 324,  325 

Ott  V.  Schrocpel 1148 

Overseers  of  the  Poor  v.  McCann,  778 

Owens  V.  Bloomer 1335 

Owen  V.  Dupignac 1182 

Owens  V.  Loomis 95 

Pacific  IM.  S.  Co.  v.  Toel 154 

Packer  v.  Nevin 150 

Paine  v.  East 776 

Pake  V.  Proal 280 

Palmer  v.  Andrews 821 

Palmer  v.  Foley 154,  928 

Palmer  v.  Great  Western  Ins.  Co. ,  300 

Palmer  v.  Hussey 123 

Palmer  V.Lang 805,  813 

Palmer  v.  Minar 899 

Paugburu  v.  Bull 827 

Pardee  v.  Tilton 1180,  1184  | 

Paris  V.  Van  Wart 323  I 

Park  V.  Park 1059,  1060,  1077  , 

Park  V.  Spaulding 904,  907  I 

Parker  v.  Bradley 1070  i 

Parker  v.  Harrison 748  ! 

Parker  v.  Speer 430  j 

Park  hurst  v.  Berdell 333 

Parrott  v.  Knickerbocker  and  N. 

Y.  Ice  Co 789 

Parsons  v.  Browne 730 

Partridge  V.  Xewton 347 

Patchin  V.  Sands 342 

Patrick  v.  ShalTer 857 

Patterson  v.  Birdsall 604 

Patterson  v.  ( ;()peland 722 

Payne  v.  liecker  .    514,  54H 

Payne  v.  Sinitli 569 

Panimier  v.  Sweeney 276 

Pearce.  Matter  of 1023 


Pease  v.  Smith 846,     315 

Peck  v.  Coler 384,     385 

Peck  V.  Hiler 330 

Peck  v.  Lombard 1:^3 

Peck  V.  X.  Y.  and  N.  J.  R.  R.  Co. ,     351 

Peck  V.  Parker 316 

Peck  V.  Sherwood 1239,  1243 

Pember  v.  Schaller 125 

People  V.  Albany  and  Vermont 

R   R.  Co 72,     712 

People  V.  Aldermen 991 

People  V.  Angel 1033 

People  V.  Assessors 972 

People  V.  'Assessors  of  Herkimer,     990 

People  V.  Bennett 1035 

People  V.  Boardman 1032 

People  V.  Board  of  Apportion- 
ment      973 

People  V.  Boardof  Comm'rs,  etc.,  990 
People  V.  Boardof  Fire  Comm'rs,  991 
People  V.  Boardof  Supervisors. .  972 
People  v.  Boston,  H.  T.  and  W. 

R.  R.  Co 715,     930 

People  V.  Bostwick 250 

People  v.  Bull 7';8 

People  V.  Campbell 992 

People  V.  Cancemi 989 

People  V.  Carter 625 

People  V.  Cartwright 1073 

People  V.  Clark 930 

People  V.  Clyde 975 

People  V.  Cobb 993 

People  V.  Common  Council 926 

People  V.  Comm'rs  of  Excise. . . .     979 
People  V.  Cooper ....  978,  1073,  1076 
People  V.  Court  of  Special  Ses- 
sions   978 

People  V.  Covin 1046 

People  V.  Cowles 951 

People  V.  Cox 110 

People  V.  De  B"Voise 926 

People  V.  Dennison 928,     992 

People  V.  Donohu'?...  935,  1069,  1075 

People  V.  Draper 330 

People  V.  Dudley 1033 

People  V.  Fairchild 926 

Petjple  V.  Fairman 976,     992 

J^eople  V.  French 991 

Peoi)l(>  V.  Ferris 926 

People  V.  Fire  Commissioners... 

990,     992 

Peo])le  V.  Flanagan 926 

People  V.  Flcnnng 471 

Peojjle  V.  Gilmore 966 

People  V.  Gray 053 

]*eople  V.  Gro.ss 1033 

People  V.  Giuni 930,     !t35 

People  V.  Hair 991 

People  V.  Heddon 993 

IVople  V.  Howlett 1033 

People  V.  liii;er.s()ii 1033 

Peojjle  V.  Isaacs 813 

People  V.  Jones 990,  1181,  1199 


Ivi 


Table  of  Casks  Cited. 


People  V.  Jourdan  991 

People  V.  Justices,  etc 77(5,  778 

People  V.  Kcater 992 

People  V.  Kcteltas 1033 

People  V.  Kenny 93(5 

People  V.  Koll) 77(5 

People  V.  Livingston 9:?1 

People  V.  Loomis 103:5 

People  V.  Matthews 1033 

People  V.  McAdam    978,  1037 

People  V.  McCann  ....  776,  777,  780 

People  V.  McCansland 920 

People  V.  McCarthy 1035 

People  V.  Met.  Telephone  Co. . . .  620 

People  V.  Murray 931 

People  V.  Mutual    En.    and    Ac. 

Association 383,  383 

People  V.  Nelliston 26 

People  V.  N.  Y.,  N.  H.,  etc.,  R. 

R.  Co 630 

People  V.  N.Y.  C,  etc.,  R.  R.  Co.,  976 
People  V.  N.  Y.   and  Manhattan 

Beach  R.  R.  Co 946 

People  V.  Palmer 1037 

People  V.  Parker 978 

People  V.  Paulding 1033 

People  V.  Peabody 931 

People  V.  Peck 335 

People  V.  Perley 926 

People  V.  Perry 990,  1055 

People  V.  Peterson 993 

People  V.  Petty 978 

People  V.  Piatt 1033 

People  V.  Police  Commissioners,  990 

People  V.  Pond 993 

People  V.  Randall    1183,  1303 

People  V.  R.  and  S.  L.  R.  R.  Co.,  1059 

People  V.  Ransom 470 

People  V.  Reilly 1059 

People  V.  Riley 1059 

People   V.    Rochester    and   State 

Line  R.  R.  Co 975,  1059 

People  V.  Schuyler 975 

People  V.  Scott 939 

People  V.  Seaton 439 

People  V.  Security  Life  Ins.  Co.,  719 

People  V.  Shackno 1041 

People  V.  Shorb 1033 

People  V.  Sutherland 1000 

People  V.  Special  Term 978 

People  V.  Spicer 970 

People  V.  Spier 1190 

People  V.  Starkweather 946 

People  V.  Supervisors 975,  1143 

People  V.  Supervisors  of  Ulster. .  991 
People  V.  Surrogate  of  Putnam 

Co 1246 

People  V.  Sweet 993 

People  V.  Fairman 976 

People  V.  Talcott 977 

People  V.  Tax  Commiissoners  . .  990 

People  V.  Tax  Comni'rs 993 

People  V.  Third  District  Cour': . .  978 


People  V.  Thornton 926 

People  V.  Tweed 137,  946,  lu33 

People  V.  Van  Nostrand lO-JO 

People  V.  Waldrou 977 

People  V.  Walsh 1037 

People  V.  Walter 990 

People  V.  Weaver 992 

People  V.  Wendell 973 

People  V.  Wcstbrook ...  1338 

Peoi)le  V.  Whitlock 930 

People  V.  Wilson 936 

People  V.  Zoll 993 

People  ex  rel.  Ainslee  v.  Howlett,  1046 

People  ex  rel  Brack  v.  Reilly  . . .  436 
Peoi)le    ex    rel.    Brown   v.    Van 

Iloesen 31 

People  ex  rel.  Clarke  v.  Clarke. .  953 

People  ex  rel.  Collins  v.  Spicer. .  98  > 

People  ex  rel.  Comstock  v.  Lucas,  768 

People  ex  rel   Cooper  v.  Field. . .  635 

People  ex  rel.  Cowley  v.  Bowe . .  967 
People  ex  rel    Crawford   v.   De 

Camp 1033,  1045 

People  ex  rel.  Dailey  v.  Livings- 
ton .   410 

People  ex  rel.  Devoe  v.  Kelly  . . .  953 

People  ex  rel.  Evans  v.  McEwen,  953 
People  ex  rel.  Garbutt  v.  R.  and 

S.  L.  R.  R.  Co 3 

People  ex  rel.  Gould  v.  Mutual 

Union  Telegraph  Co 928,  930 

People  ex  rel.  Hackley  v.  Kelly,  3 

People  ex  rel.  Hatzel  v.  Hall 936 

People  ex  rel.  Hoyle  v.  Osborne,  953 

People  ex  rel.  Jacks  v.  Callahan,  1046 
People  ex  rel.  Jones  v.  Davidson, 

1059,  1076 
People  ex  rel.  Kellogg  v.  Schuy- 
ler    768 

People  ex  rel.  Kelly  v.  Aitken,  3,  1059 
People  ex  rel.  Kelly  v.  Common 

Council 974 

People  ex  rel.  Kirk  v.  Weiant. . .  1306 

People  ex  rel.  Knowlton  v.  Sadler,  953 

People  ex  rel.  Lansing  v.  Tremain,  381 
People  ex  rel.  Lefever  v.  Super- 

visers  of  Ulster 974 

People  ex  rel.  Lumley  v.  Lewis,  971 
People  ex  rel.  McBride  v.  N.  Y. 

C.  R.  R.  Co 635 

People  ex  rel.    McCann  v.  Kil- 

bourn 381 

People    ex    rel.     McDonald    v. 

Keeler 953,  1063 

People  ex  rel.  Mclntyre  v.  Hurl- 
but  953 

People  ex  rel.  Mitchell  v.  Sheriff,  1076 
People  ex  rel.  Negus  v.  Dwyer, 

146,  1063 
People  ex  rel.   Oakley  v.  Petty, 

1306,  1307 
People  ex  rel.  Phelps  v.  Oyer  and 

Terminer 967 


Table  of  Cases  Cited. 


Ivii 


People  ex  rel.  Phelps  v.  Fancher,  3 
People  ex  rel.  Sauford  v.  Geduey,  1041 
People  ex  rel.  Schlosser  v.  Porter, 

■6,  1377 
People  ex  rel.  Sherwin  v.  Mead, 

953,  963,     967 
People  ex  rel.  Sherwin  v.  Mead. .     963 
People  ex  rel.  Society  for  Preven- 
tion of  Cruelty  to  Children  v. 

Gilmore  3 

People  ex  rel.  Stevens  v.  Hayt. . .  970 
People  ex  rel  Swinburne  v.  Nolan, 

926,  934,     9o6 
People    ex    rel.    The    Mayor    v. 

Nichols 977 

People  ex  rel.  Trainor  v.  Baker. .  953 
People  ex  rel.  Tully  v.  Davidson,  953 
People  ex  rel.  Tattle  v.  Walton..  1031 
People  ex.  rel.  Waring  v.  Monroe, 

C.  P 110 

People  ex  rel.  Woolf   v.  Jacobs,        3 
People  ex  rel.  Wyman  v.  John- 
son   1031 

Perry  v.  Dicker.>^oa 95 

Perry  V.  Edwards 776 

Perry  v.  Lansing 790 

Person  v.  Grier 128,     271 

Peters  v.  Carr 1203 

Petrie  v.  Myers 1370 

Peyser  v.  McCormack lOS 

Peyser  v.  Wendt 1318 

Phelps  v.  Green 530 

Phelps  V.  Maxwell  123 

Phelps  v.  Phelps 1212,  1214 

Philip  v.  Blagge 1446 

Philips  V.  James 736 

Phillips  la  re  will  of 1274 

Phillips  V  Melville 653 

Phinuey  V.  Broschell 68 

Phinney  v.  Phinney 735 

Phipps  V.  Carman 340 

Pickhardt  v.  Antony 163 

Pierson  v.  Freeman 123 

Pierson  v.  Townsend 845 

Pike  V.  Nash 265 

Pinckney  v.  Smith 1215 

Piper  V.  Williams 1212 

Piser  V.  Lockwood 1213 

Place  V  Chesebrough 335 

Place  V.  Riley 431 

PliUner  v.  Lehman 224 

Plimton  V.  Bigelo w 171.     194 

Plum  V.  Jarnier 799 

Pomeroy  v.  Ricketts 164.     193 

Pond  V.  Leman 168 

Pool  V.  Safford 399 

P>)ole  V.  Johnston,  Matter  of 1151 

Poole.  Matter  of 1151 

Pool  V.  Spofford 1203 

Poole.  Matter  of 1151 

Popham  V.  Barrcitto 376 

Porter  v.  Kingsbury 95,  403,     881 

Poet  V.  yEtna  Ins.  Co !i84 


Post  V.  Uoremus 414 

Potter  V.  Carpenter 1441 

Potter  V.  Kitchen 889 

Potter.  Matter  of 1223.  12;-9 

Poultney  v.  Bachman 904 

Powell  V.  Powell 846 

Power  V.  Village  of  Athens  1062 

Pragmagiori  v.  Pragmagiori 682 

Prat  Manufacturing  Co.  v.  Jordan 

Iron,  etc.  Co 98 

Pray  v.  Hegeman 748 

Prentice  v.  Dike 833 

Prentiss  v.  Nichols 746 

Prescott  V.  Tousey 814 

President  of  N<;w  Windsor  Turn- 
pike Co.  V.  Ellison 345 

Preston  v.  Morrow 333 

Preston  v.  Yates 459 

Pi  ice  v.  McClave 867,  868 

Price  v.  Orcntt 1023 

Price  v.  Price  230 

Priest  v.  H.  R.  R.  R  Co 825 

Prime  v.  Anderson 429 

Prince  v.  Cu jas 857 

Prince  v.  Down 877 

Pritchard  v,  Dratt 518 

Produce  Bank  v.  Morton,  351,  740,  915 

Prosser  v.  Mathieson 96 

Prouty  v.  Lake  Shore  and  M.  S.  R. 

R.  Co  765 

Prouty  v.  Prouty 1035 

Provost  v.  Farrell 1441 

Pryer  v.  Clapp 1274 

Purchase  v.  Matteson 347 

Purdy  v.  Rochester  Printing  Co. .  813 

Purdy  V.  Vermilya 870 

Purves  V.  Landell 791 

Purvis  V.  Coleman  799 

Pustet  V.  Flannelly 255 

Pyrolusite  Manganese  Co.,  Matter 

of 1172   1174,  1176 

Quain  v.  Russell 890 

Quinby  v.  Strauss 746 

Quiun  V.  Power . .  783 

Rae  V.  Beach 403 

Rae  V.  Ilarteau 403 

Ralil  V.  Rahl 1059,  1060 

Railings  v.  Pitmann 1187 

Ramaiey  v.  Leland 791 

Ramsden  v.  Ramsden 694 

Randall  v.  Carpenter T>1 

Randall  v.   Sackett 233 

Rank  v.  Camp 1314 

Rapelye  v.  Prince 330 

Ratel  v.  Ratel 1213,  1214 

Rathbone"  v.   Clark   1 1 57 

Rathbone  v.  Iloouey 5^^5 

Rtitzcr  v.  Rai/cr 95,  706 

Raymond  v.  Itichmoud 305 

Raynor  v.  Gordon 741,  1330 

Read  v  French 61,  879 


Iviii 


Table  of  Cases  Cited. 


Read  v.  Lozin • 335 

Read  v.  McLanahan 450 

Read  V.  French 379 

Reildingtoa  V.  Mariposa L.  andM. 

Co 51 

Reecev.  Rigby 791 

Reed  v.  Champagne 1202 

Reese  V.  Boese 324 

Reese  v.  Smyth 395,     397 

Reformed  Cliurch  v.  Schoolcraft,     486 
Reichmauu  v.  Manhattan  Co.    . . .     275 

Reigelmanu,  Estate  of 1318,  1319 

Reilly  V.  Sisson       193 

Reiners  v.  Brandhorst 86 

R-iper  v.  Nichols 788 

Remney  v.  Gedney 1193 

Renick  v.  Orser 841 

Republic  of  Mexico  v,  Arrangois.     313 

Requa  V.  Uolmes.    ..    541 

Revere   Copper  Co.  of  Boston  v. 

Dimock 857 

Reynolds  v.  Gilchrest . .  1199 

Reynolds  V.  Mason 230 

Reynolds,  Matter  of ...  1358 

R(!yuol(Js  V.  Reynolds 694 

Rhinelander  v.  Mather 768 

Richardson  v.  Draper 233 

Richardson  v.  Kropf 414 

Richardson  v.  Mason 892 

Richter  V.  Kramer 114 

Richtmeyer  v.  Remsen 841 

liider  V.  Mason 759 

Rider  V.  White 819 

Ruck  V.  Fish 1360 

Risgsv.  Cragg 1333 

Riggs  V.  Waydell 228 

Ring  V.  Mott. 290 

Rilteu  V.  Griffith. 68 

R  )bbms  In  re 1310 

K  >bert  v.  Good 880 

Roberts  v.  Snelling 880 

Roberts  In  re 1015,  1021 

Roberts  v.  Marsen .... 230 

Rdbertson  v.  Baruum 1444 

Robertson  v.  Bennett 805.     813 

Robertson  v.  Russell . , 273,     274 

Robinson  v.  Hal  oh 805,     813 

Robinson  v.  Kinne 615 

Robin.son  v.  Wheeler 615 

Robitzek  V.  Hect 1442 

Robshand  v.  Waring 1184 

]{oby  V.  Hallock 115 

Rockwell  V.  Brown 827 

Rockwell  V.  iMcGovern 1005 

Roderigas  v.  East  River  Savings 

Institution .  4128 

Rodi  V.  Rutger  s  Fire  Ins.  Co 884 

Rodney  In  re 1335 

Rogers  v.  Durant 283 

Rogers  v.  King 95 

Rogers  In  re 1093,  1104 

Rogers  v.  Rogers 1354 

Rogers  v.  Vosburgh 115 


Rolla  v.  Wright 

Rollins  V.  Wood 

Roosevelt  v.  Dale 

Roosevelt  Matter  of 

Roosevelt  v.  Nichols 

Root  V.  Foster 

Roraback  v.  Stebbins 

Rosenberg,  Matter  of 

Rosenplaenter  v.  Roessle 

Ross  v.  Boardman 

Ross   In  re 1320, 

Ross  V.  i\Iarkham 

Ross  V.  Mathers 

Ross  v.  Ross 

Ross  V.  Wood 

Ro wles  V.  Hoar 

Royer  Wheel  Co.  v.  Fielding 

Ruck  V.  Lange 

Ruckman  v,  Ruckman 

Ruger  V.  Heckel 

Handle  v.  Allison 

Ruppcrt  V.  Haug 163, 

Russell  In  re 

Russell  V.  Freer 

Russell  V.  Hartt 

Russell  V.  Sunbury 

Rutherford  v.  Aiken 

Rutherford  v.  Hewey 

Rutherford  V.  Holmes.. 823,  1377, 

Rutter  V.  Boyd 

Ryan  v.  Cochrane 

Ryan  v.  Harrigan 

Ryan  v.  N.  Y.  C.  R.  R.  Co 

Ryckmanv.  Ryckman,  1059,  1060. 
1061. 

Ryder  v.  Dodge 

Ryer  v.  Ryer 700,  1061,  1062, 


1251 
423 

1446 

1328 

1150 
824 
379 

1023 
799 
599 

1232 

1420 
832 
366 
329 
198 
747 
636 
694 
689 
724 
194 

1257 
250 

1300 
783 
613 
514 

1410 

176 

250 

1337 


1077 
1142 
1077 


Sackett  v.  Newton 1182 

Sackett  v.  Spencer 347 

Saflford  v.  Stevens 387,  410 

Salisbury  v.  Howe 836 

Salter  v.  Uticaand  Black  R.  R.  I.'. 

Co 773.  1441 

Saltsman  v.  Shults 620,  904 

Sanborn  v.  E.  M.  Co  198 

Sanders  v.  Gori 893 

Sanford  v.  Chase 128,  271 

Sandford  V.  White 515 

Saunders  v.  Irwin 450 

Sauter  v.  N.  Y.  C.  and  H.  R.  R.  R. 

Co 782,783.784,  785 

Savage  v.  Sherman 1827 

Savage  v.  Gould 1356 

Savery  v.  Crook 817 

Scranton  v.  Clark 834 

Seaman  V.  Low 110 

Seaman,  Matter  of 1304 

Seaman  v.  Whitehead 1333 

Second  National  Bank  of  Oswego 

V.  Dunn 643 

Secor  V.  Sentis 1328 

Seward  v.  Jackson 347 


Table  of  Cases  Cited. 


lix 


Seybolt  v.  N.  Y.  L.  E.  and  W.  R.  l 

R.  Co 783' 

Seymour  v.  Newton 1415 

Scbseffer  v.  Soule 997 

c>cbanck  v.  Conover ., . . .  1198 

Schenck  v.  Naylor 888 

fcjcbepmoes  v.  Bousson 274 

Schermerhorn  v.  Carter 1051  [ 

Scheu  V.  Loliniug 514] 

Schewe  v.  Mulvey 823 

Schlegel  v.  "Winckel. . .  1023,  1024,  1326 

Schlesinger  v.  Foxwell 128,  271 

Schlichting  v.  Wintgen 783  ! 

Schmidt  v.  Heitner 132  j 

Scbenke  V.  Rowel  1 1445 

Schofield  V.  Whitelegge 649  ! 

Scofield  V.  Churchill 1245,  1298 

Scholey  v.  Halsey 894  I 

Schoonmaker  v.  Brooks 778  1425  j 

Schroeder  v.  Gurney 609 

Schroeder  v.  Lear 65,  68 

Schroeter  v.  Schroeter 366 

Schrauth  v.  Dry  Dock  Sav,  B'k. . .  1193  ! 

Schultz  V.  Third  avenue  R.  R.  Co.  329 

Schultze  V.  Rodewald 115 

Schumann  v.  Orchard 384 

Schwarz  V.  Oppold lOy 

Schwinger  v.  Hickok 568 

Scofield  V.Churchill 1245,  1298 

Scofield,  Estate  of 1245 

Scott  V.  Meeker 866 

Scranton  v.  Clark 834 

Seaman  v.  McReynolds 376 

Seligman  v.  Wallack 119 

Selig  V.  Mclutyre 118 

Sarafind,  Matter  of ... 953 

Selover  v.  Coe 729 

Shand,  Estate  of 1263 

Shand  v.  Hanley 740 

Shaw  V.  Cock 904 

Second  National  Bank  of  Oswego 

V.  Dunn 642 

Shaw  V.  Jayne 823 

Shaw  V.  McCarty 1035 

Shaw  V.  Tobias 656 

Shearman  v.  Niagara  Life  Lisur- 

ance  Co 884 

Sheehy  v.  Kelly 1055 

Sheehan  v.  Mahar 211 

Sheldon  v.  Carpenter 827 

Sheridan  v.  Andrews 413 

Sheridan  v.  Farnham 1399 

Sheridan  v.  Houghton 734 

Sheridan  v.  Mann 387,  410 

Sherman  v.  Gregory 312 

Sherman  v.  Partridge 254 

Sherman  v.  Trustees  of   Clinton 

Springs 910 

Shook  V.  Goddard 1240 

Short  V.  Stone 822 

Shum way  Ex  parte 469 

Piewert  v.   Hamel 569,  581,  5H8 

Sillick  V.  Mason 759 


Silliman  v.  Lewis 790 

Simms  v.  Voght 487 

Simmons  v.  Lyons 649 

Simmons  v.  Simmons 689 

Simons  v.  N.  Y.  Life  Ins.  Co 882 

Simpson  In  re  1257 

Sisson  v.  Barrett 347 

Slingerland  In  re. 1336 

Skelton  v.  Scott 722 

Slater  V.  Jewett 782 

Slater  v.  Merritt 1073 

Sloane  v.  Livermore 123 

Sloane  v.  Waring 746 

Slocum  V.  Stoddard.   859 

Slosson,  Estate  of 1328 

Slosson  V.  Naylor 1328 

Smadheck  v.  Sisson 193 

Smal  In  re 1015,  1021 

Smart  v.  Haring 893 

Smith  V.  Bennett 896 

Smith  V.  Britton 857 

Smith  V.  BroVn 877 

Smithy.  Fellows 114 

Smith  V.  Frank 123 

Smith  V.  Grant 325,  324 

Smith  V.  Gratz 98 

Smith  V.  Hicks 110 

Smith  V.  Kelley 570 

Smith  V.  Knapp 841 

Smith,  Matter  of  will  of . ..  .1230, 

1232,  2331 

Smith  V.  Long 490 

Smith  V.  Lusk 1373 

Smith  V.  Mahon 65 

S:i,ith  V.  Masten 815 

Smith  V.  N.  Y.  C.  R.  R.  Co 325 

Smith  V.  Osborne 351 

Smith  V.  Orser 196 

Smith  V.  Rowley 894 

Smith  V.   Smith. . .  .126,  366,  687,  627 

Smith  V.  Tallmadge 296 

Smith  V.  Wells 68 

Smith  V.  Young 866 

Smyth  V.  McGovern 274 

Snape  v.  Gilbert 108 

Snedeker  v.  Snedeker 741 

Snell  V.  Loucks 2C0 

Snell  V.  Rich '. 789 

Sniffen  v.  Koechling 341 

Snow  V.  Williams 620 

Snyder  In  re 1227 

Snyder  v.  Schram 1H80 

Snyder  V.  Sherman 1220,   1232 

Snyder  v.  Van  Ingen 1059 

Sohn.  Estate  of 1262,   1298 

Solinger  v.  Earle 894 

Solinger  V.  Patrick 1386 

Solomon  v.  Relden '^f*;^ 

Soudan  v.   Belknap WZ'S 

Southard  v.  Benner 741 

Southern  Life  Insurance  and  Trust 

Co.  V.  Davis 90a 

Southwortli  V.  Curtis 354 


Ix 


Table  of  Casks  Cited. 


Sparks  v.  Andrews. .     1023 

Spear  v.  Downing 877 

Spears  v.  Mayor  etc.  of  New  York,     7G5 

Spell umu  V.   Welder 867 

Spencer    v.     Rogers    Locomotive 

Works 867 

SptMicer  V.  Wait 1414 

Sp  rry  v.  Reynolds 1379 

Spra;ue  V.  IJutterworth 8,     274 

Spring  V.  Short 746 

Springsteene  v.  Gillett.  ,.384.  581,     588 

Siiiats  V.  Bristow 197 

Siacom  V.  Moon 313 

Stallknecht  v.  Penn.  R,  R.  Co.. . .     781 

Stainiu  V.  Bostwick 610 

Standacher  v.  Pregenzer 132 

Stanley  v.  Lovett 1 198 

Stannard  V.  Et.nge 900 

Staples  V.  Faircnild 65 

Staples  V.  Gokey 915 

Stale  Bank  of  Syracuse  v.  Gill,  211,  315 

740 

Steamship  Co.  V.  Mitchell 837 

Stebbeiis  v.  Cowles 335 

Stedeker  v,  Bernard 108 

Steehr  v.  Curran 934 

Steffia  V.  Lockwood 746,     747 

Steiuele  v.  Oechsler 1314 

Steinert,  Matter  of 1073,  1077 

Stent  V.  Continental  Nat.  Bank..       97 

Stern  v.  Moss 138 

Sterrettv.  Denver  and  R.  G.  R.  R. 

Co 51 

Steuben  Co.  Bk.  v.  Alberger,  163,  193 
Stevens  v.  Middleton,  162, 163, 166,     193 

Stevens  V.  Stevens 1236,  1240 

Stevens  v.  The  Mayor 351 

Stiles  V.   Stiles    1135 

Stil.vellv.  Carpenter... 723,  1312,  1314 
Stillvvell  V.  Mut.  Life  las.  Co.  of 

New  York 894 

Story  V.  Dayton 1215 

Story  V.   Hamilton 1157,   1159 

Story  V.  Woodward 1142 

Strobridge  V.  Strobridge 1061,   1077 

Strong  T.  City  of  Brooklyn  4«6 

Strong  V.  Epstein U'Ol 

Strong  V.  Stevens 895 

Strong  V.  Strong 243.     682 

Stryker  v.  Turnbull 342.     345 

Stuart  V.  Hawley 788 

Stuart  V.  Kissam 732 

Steuben  Co.  Bank  v.  Alberger. . .     194 

Slufibing  V.  Marshall 783 

Sturges  V.  Vanderbilt 741 

Sturges  V.  Wiltsie 803 

Sudlow  V.  Pinckney 1232 

Sullivan  V.  Dahlman 330 

Sullivan  V.   Frazer 93 

Sullivan  V.  Presdee 1388 

Sullivan  V.  Sullivan 514 

Summerfield  v.  Howie 1304 

Sumner  v.  Osbom 132 


Sup'rs  of  Saratoga  Co.  v.  Deyoe. .  255 

Surdam  v.  Fuller 878 

Sulherlaud  v.  Rose 602 

Sutphen  v.  Fowler 1119 

Sulton  V.  Weeks 1236 

Suydiuu  V.  Belknap 1023 

Suydiun  v.  Jenkins 657 

Suydani  v.  Smith 776 

Swaunell  v.  Ellis 791 

Swarthout  v.  Burr 1119 

Swartwout  v.  Payne 315 

Sweeney  v.  Sturgis  274 

Sweet  v.  Bradley 833,  892 

Sweet  v.  Buffalo  N.  Y.  and  P  R. 

Co 486 

Sweet  v.  Overseers  of  Clinton. . . .  989 

Swenarton  v.  Hancock 1248 

Syracuse,  etc.  R.  R.  Co.  v.  Collins .  895 

Taintor  In  re 1300 

Tait  v.  Culbertson 805 

Taud  V.  Magnes 732 

Tanner  v.  Marsh 335 

Tanner  v.  Niles 512,  530 

Tasker  v.  Wallace 429 

Tate  v.  McCormick 885 

Tator  V.Adams 596 

Taylor  v.  Charter  Oak  Life   In- 
surance Co 882 

Taylor  v.  Monnot 799 

Taylor  V.  Reed 163 

Tebo  V.  Baker 278,  280 

Terrett  v.  Cowenboven 1037,  1047 

Terry  V.  Jewett 783 

Terwilliger  v.  Wands 805,  810 

Teschuer  v.  Deveron 639 

Tiiaule  v.  Krekeler 827 

The  Bank  v.  Dugan 757 

The  Bank  of  Monroe,  Ex  parte. .  470 
The   Mayor,  etc.,  of  Albany,  Ex 

parte    991 

The  Mayor,  etc. ,  v.  Genet 166 

The  Mayor  v.    N.   Y.   and  S.    L 

Feriy  Co 1062,  1073 

The  People  v.  Peabody 931 

The  Phoeiiix  Bank  v.  Donnell. . .  95 

Tlierassou  v.  White 514 

The   United    States  v.    Dumplin 

Island 982 

Thierry  v.  Crawford 1280 

Third  Avenue  R.  R.  Co.  v.  Mayor, 

etc. ,  of  New  York 253 

Thomas  v.  Beebe 837.  338 

Thomas  v.  Bogert 429 

Thomas  v.  Nelson 879 

Thomas  v.  Rumsey 342 

Tiiompson  v.  Bnrhans 486 

Thompson,  Estate  of 1301 

Thompson  v.  Friedberg 127 

Thompson  v.  Lumley 26,  827 

Thompson  v.  Mott  1242 

Thompson  v.  Sickles 280 

Thompson  v.  Taylor 868 


Table  of  Cases  Cited. 


Ixi 


Thomson  v.  Taylor 1312 

Thompson  v.  Van  Vechten 379 

Thorp  V.  Thorp 689 

Throop  V.  Hatch 736 

Thorn  V.  Kuapp  821 

Thorne  V.  Turck 823 

Tibbita  v.  Tibbits 530 

Tickel  V.  Quinn 1331 

Tiedeman  v.  Ackerman 853 

Tifftv.  Bloomberg 766 

Tiffany  V.  Lord ...     168 

Tilden  v.  Dows 1314 

Tilden  V.  Gardiner 329 

Tillotsou  V.  Cheetham 155 

Tiltou  V.  Beecher 113,     816 

Tilton  V.  Ormsby 1304 

Tilton  V.  U.  S.  ii.  Ins.  Co 1143 

Thurman  v.  Mosher ;r38 

TiM  V.  Tim 682 

Timv.  Smith 194 

Tinker  V.  Crooks 1199 

Tinkey  v.  Langdon 1195 

Tolesv.  Adee. 134 

ToUv.  Alvord 841 

Tookerv.  Arnoux 114 

Tooker  v.  Bell 1288,  1290 

Torry  v.  Black 618 

Town  of  Hancock  v.  The  First 

Nat.  Bank 274 

Town  of  Pierrepont  v.  Lovelass    262 

1441 

Townsend  v.  Bargy 653 

Towusend  V.  Simpson   276,     766 

Townshend  V.  Townshend 513 

Traud  v.  Magnes 732 

Tracy  v.  Altmeyer 330 

Trazuier,  Matter  of 1092 

Travis  V.  Barger 817 

Tremain  v.  Guardian  Mut.  Life 

Ins.  Co 757 

Tremain  v.  Richardson 1199 

Trimble  v.  More 376 

Trimmer  v.  Hiscock ~     805 

Tripp  V.  Sanders 378 

Trow's  Printing,  etc.,  Co.  v.  Hart,     163 

193 
Troy  and  Lansingburgh  R.  R.  Co. 

V.  Kane 636 

Trustees    Can.   Academy  v.  Mc- 

Kechnie 899 

Tufts  V.  Braisted 855 

Tugwell  V.  Bussing 459 

Tutlle  V.  Ileidermann 1318,  1319 

Tworably  v.  Cassidy 604 

Tyng  V.   Commercial    Warhouse 

Co 853 

Uline  V.  N.  Y.  C.  and  H.  R.  R.  Co.  293 

Uline  V.  N.  Y.  C.  and  H.  H.  R.  Co.  294 

Union  Bank  v.  Bush 379 

Union  Dime  Saving  Institution  v. 

Anderson 23 

Union  Nat.  Bank  v.  Kupper 381 


Union  Dime  Saving  Institution  v. 
Duryea 372 

Union  Nat.  Bank  v.  Warner '^ *" 

United  States  v.  Graff 

U.  S.  Life  Ins.  Co.  v.  Jordan 

United  States  v.  Dumplin  Is- 
land  

United  States  v.  Rose 

United  States  v.  Sturgis 

Urquhart  v.  The  City  of  Ogdens- 
burg 


46 

164 

1336 

983 

1378 

372 

782 


Valentine,  Estate  of 1333 

Valentine  In  re 1122,  1128,  1358 

Valentine  v.  McCue 586,  627 

Valiente  v,  Bryan 1198 

Van  Arnam  v.  McCune 814,  904 

Vanderbilt  v.  Schreyer 569 

Vanderpoel  v.  Kissam 124 

Vanderwiele  v.  Taylor 620 

Vati  Duzer  v.  Howe 867 

Van  Dyck  V.  McQuade 313,  314 

Van  Gelder  v.  Van  Gelder. .  .459,  461 

Van  Leuven  v.  Like 820 

Van    Rensselaer,     Executors    v. 

Gallup 886 

Van  Rensselaer  v.  Jones 886 

Van  Roy  v.  Harriott 273 

Van  Schaick  v.  Saunders 1161 

Van  Vechten  v.  Hopkins 342 

Van  Voorhies  v.  Brintall 689 

Van  Vagenen  v.  Botsford 609 

Van  Wyck  v.  Baker 746 

Van  Wyck  v.  Van  Wyck 1262 

Veeder  v.  Baker 313 

Vender  v.  Medgett 1441 

Vermilyea  v.  Palmer 260 

Vernam  v.  Smith 879 

Vernon,  Estate  of 1261,  1262 

Verona    Central    Cheese    Co.    v. 

Murtaugh 776 

Verplanck  In  re 1323 

Verplanck  v.  Verplanck 514 

Victory,  etc.  Mfg.  Co.  v.  Beecher.  86 

Victory  v.  Blood 914 

Victors  v.  Davis 879 

Vihis  Nat  Bank  v.  Moore 114 

Voessing  v.  Voessing 514 

Vogel  V.  Mayor  of  N.  Y 621 

Volans  V.  Owen 890 

Voltz  V.  Blackmar 823 

Von  Wallhofen  v.  Newcombe 791 

Waas  V.  Waas 690,     703 

Wadley  V.  Davis 442 

Wade  v.  Kalbtleisch 821,     823 

,  Wadk-y.  Mutter  of 440 

'  Watlle  V.  Diilcnback 825 

Wakeman  v.  Dailey 836 

W^ldman  v.  ODonnell 1193 

I  Waldo  V.  Waldo 1220 

Walker  v.  Donovan 1180 

'.  Walker  v.  Granite  Bank 243 


1X11 


Table  of  Cases  Cited. 


Walker  v,  Reiff 65 

Walker  V.  Walker 700 

Wall  V.  Lee 825 

Wallace  V.  Beunett 813 

Wallace  v.  Castle 162 

Wallace  v.  Feely 587 

Wallace  v.  Swinton 442,  486 

Wallace  v.  Warren 87  > 

Waller  v.  Harris 605 

Walsh  V.  Sua  Mutual  Ins.  Co 342 

Walter  v.  Walter 520 

Walter  v.  Walter 530 

Walton  V.  Howard 1333 

Walsh  V.  Sun  Mutual  Ins.  Co...  342 

Warner  v.  Perry 823 

Waudell  V.  Edwards 817 

Ward  V  James 419 

Ward  V  Sands 429 

Waring  v.  Chamberlain 335 

Waring  v.  O'Neil 381 

Warner  v.  Harvey .  286 

Wurner  v.  Henderson 1055 

Waruer  v.  Ross 1445 

Warren  V.  Wheeler 859 

Washburn  v.  Catliu 696,  700 

Waters  v.  Faber 1328 

Watkins  V.  Abrahams 379 

Watson,  Matter  of 1215 

Watsom  V.  Nelson,  Matter  of 300 

Watt  V.  Healy 132 

Watts  V.  Nichols 164 

Wavel  V.  Wiles 335 

Wiiy  iManufacturing  Co.  v.  Corn.  110 

Wayne  Co.  Sav.  B'k  v.  Brackett.  274 

Webb  V  Foster 115 

Webb,  Matter  of 722 

Webb  V.  The  Rome,  Watertown 

and  Ogdensburgh  K.  R.  Co 788 

Webber  v.  Mallitt 514 

Wei  er  V.  Bank  for  Savings 256 

Wuo.-,Ler  V.  Stockwell 278,  280 

Weed  V.  Bergstresser 225 

Weed  V.  N.  Y.  and  H.  R.  R.  Co.  325 

Weed  V.  Waterbury 1300,  1303 

Wed  V.  Martin 68 

Weisbrod  v.  Marquardt 1420 

Welch  v.  Gallagher 1373 

Welcli  V.  Winterburn 124 

Weiler  v.  Suggett 1213 

Welling  v.  Welling 1328 

Wellington  v.  The  Ulster  Co.  Ice 

Co 597 

Wells  v.  Jewett 838 

Wells  V.  Sisson 1383 

Wemple  v.  Glavin 21 

Wenzlick  v.  McCotter 621 

Werely  v.  Persons 825 

Wesson  v.  Chamberlain 841 

West  V.  Mapes 1288 

Western  R.  R.  Co.  v.  Bayne 649 

Wetmore  v.  Jennys 110 

Wheeler  v.  Dakin 896 

Wheeler  v.  Lozee 265 


Wheeler  v.  McCabe 414 

W lieelock  v.  Lee 93,  853 

Wheelright  v.  Wheelright 1327 

Whitbeck  v.  Van  Rensselaer 498 

White  v.  Baxter 894 

White  V.  Bogart.    61 

White  V.  Cheesbro 805 

White  V.  Coulter 385,  428 

White,  Matte  r  of 1040,  1397.  1398 

White  V.  Mdicr 859 

White  V.  Nellis •. 817 

White  v.  Richert 164,  166 

Whitehead  v.  Allen 879 

Whitehead,  Matter  of 1355 

Whileman  v.  Leslie 329 

Whitfield  v.  Whitfield 1251 

Whitlock  V.  Roth 123 

Whitney  v.  Deniston 168 

Whitney  v.  N.  Y.  and  Atlantic  R. 

_J{.  Co 1177 

Whitney  V.  Phffinix 1327 

Whitney  v.  Welch 1201 

Whittlesey  v.  Frantz 711 

Wilberly  v.  Matthews 1145 

Wilbur  V.  Cartright 892 

Wilckens  v.  Willett 8111 

Wilcox  V.  Daggett 706 

AVilcox  v.  Hoch 347 

Wilkie  v.  Moore 243 

Wilkiev.  Rochester  and  S.L.R.  R. 

Co 720 

Wilkina  v.  Earle 799 

Wilkinson  v.  Johnson 253 

Willard  V.  Reinhardt 799 

Willard  v.  Stone 823 

Williams     v.    Insurance    Co.    of 

North  America 884 

Williams  v.  Norton . .    123 

Williams  v.  Thorn 740,  748 

Williams  v.  Willis 37 

Williamson  v.  Allison 833 

Willis  V.  Chipp 895 

Willover  V.  Hill 805,  813 

Wilmore  V.  Flack 91 

Wilmont  V.  Meserole 626 

Wilson  V.  Bennett 98 

Wilson  V.  Halpin 799 

Wilson  V.  Palmer 413 

Wilson  V.  Pearson 113 

Wilson  V.  Simpson 351 

Winnington,  Estate  of 1301 

Wing  V.  Disse 1203 

Winter  v.  Eckert 548 

Wintermute  v.  Clarke 799 

Winton  v.  Winton 699 

Witbeck  v.  Van  Rensselaer 498 

Withers,  Estate  of 1333 

Witthaus  V.  Schack 549 

Wood  V.  Clute 512 

Wood  V.  Fisk 513 

Wood  V.  Flynn  232 

Wood  In  re 1334 

Wood  V  Lafayetta 634 


Table  of  Cases  Cited. 


Ixiii 


Wood  V.  Pangburn 384.  813 

Wood  V.  Phillips 635.  825 

Wood  V.  Riker '3  Executor 37 

Wood  V.  Squires 381 

Wood  V.  the  Mayor 946 

Wood  V.  Tunnicliff. . .  .1142. 1145,  1150 

Wood  V.  Wood 486,  682,  684 

Woodbury  v.  Sackrider 868 

Woodhouse  v.  Woodhouse 1237 

Woodmansee  v.  Rogers 193 

Woolley  V.  Newcomb 888,  889 

Woolsey  V.  Brown 413 

Wright  V.  Booth 91 

Wright  V.  Cabot 1193 

Wright  V  Fleming 1247 

Wright.  Matter  of 953 


Wright  V.  Nostrand 426 

Wright  V.  Wright 869 

Wyckoflfv.  Devlin 857 

Wyman  v.  Wyman 8S3 

Yates  V.  Burch 403.  414 

Yertore  v.  Wiswall 7>-3 

Yorks  V.  Peck 423 

Young  V.  Heermans  740,  740 

Younger  v.  Duffie 735,  813 

Youmans  v.  Terry 471,  472,  973 

Zabriskie  v  Smith 836 

Zimmer  In  re 1093 

Zimmerman  v.  Erhard 95 

Judu  V.  Van  Mindeng 1023 


T-A-BLE 


ADDITIONAL  CASES  CITED 


Volume  2,  Revised  Edition  of  1896. 


[the  references  are  to  the  pages;  those  having  letters  "a,"  etc., 

AFFIXED  ARE  REFERRED  TO  AS  PART  OF  THE  ORIGINAL  PAGE.] 


Abbott  V.  Royce 920 

Abegg  V.  Bishop 746 

Abel  V.  Bradner 1444 

Ackerly,  etc.,  Co.  v.  Partz  .1181,  1183 

Ackerman  v.  Betz 890 

Ackerman  v.  Cobb  Line  Co 879 

Adams  V.  Adaoip 694 

Adams  v.  Fassett 729,  731 

Adams  v.  Irving  Nat.  Bank 894 

Adamson  v.    Nassau  Electric  R. 

Co 912 

Adamson  v.  Union  R.  Co 912 

Adams  v.  Robeson 1396 

Adams  v.  Tator 768,  1412 

Adelph  v.  DeCeu 1425 

iEtna  Ins.  Co.  v.  Mayor 879 

Agar  v.  Tibbetts 855 

Albert  Palmer  Co.  v.  Dickinson..  1420 

Aldinger  v.  Pugh 1059 

Aid  rich  v.  Aldrich 700 

Aldrich  V.  Davis 1199 

Aldrich  V.  Funk 1122,  1128.  1132 

Alexander,  Matter  of. 1209,  1318 

Allen,  Matter  of 1230 

Alger  V.  Conger 722 

Allison  V.  Abendroth 896 

Am.  Preserving  Co.  v.  Wiltsie...   879 

Ammerman,  Matter  of 1063,  1075 

Amofl  V.  Bradley 1420 


Anderson  v.  Anderson...  .672,  674,  734 

Anderson  v.   How 827 

Andrews  v.  Snyder 1420 

Andrews  v.  "Whitney 740,  741 

Angell  V.  Van  Schaick 736 

Anonymous 953 

Anthony  Battle,  In  re  Estate  of. .  1060 

Argersinger  v.  Levor 820 

Arkenburgh,  Matter  of 1059 

Armstrong  v.  Grant 911 

Armstrong  v  McKelvey 729 

Armstrong  v.  Sanford 1423 

Armstrong  v.  Wernstein.  ..1122,  1132 
Arrow  Steamship  Co.  v.  Bennett. .   814 

Ashv.  Purnell 1031,  1032,  1048 

Astheimer  v.  O'Pray 890 

Atherton  v.  Atherton 694,  700 

Attorney- General,  Matter  of. ... .   970 

Atwood,  Matter  of 1209 

At  wood  V.  Beirne 823 

August  V.  Fourth  Nat.  Bank 878 

Aultman  &  Taylor  Co.  v.  Syme. . .  1183 

Austin  V.  Vrooraan 823 

Austin  V.  Wilson 878 

Avery  v.  Blair 827 

Ayer  V.   Colgrove 817 

Ayrault,  Matter  of 1323 

Aylsworth  v.  Gallagher 878 

Babcock  v.  Fitchburg  R.  Co 788 


Ixvi 


Table  of  Cases  Cited. 


Bacon  V.  Jacob 890 

Badger  v.  Appleton 1444 

Bailey  v.  Bailey 689 

Bailey  v.  Crowell 1032 

Beird,  Matter  of 970,  1092 

Baker  V.   Brundage 1201 

Baker  V.Hart 846 

Baker  v.  Herkimer 1180 

Balcom  v.  Terwilliger 1424 

Baldwin  v.  Roberts 855 

Baldwin  V.  Smith 1323 

Baldwin  V.  Sullivan  Timber   Co..  894 

Bame  V.   Seykora 1392 

Bandellv.  May 828 

Bank  of  Montreal  v.  Gleason 741 

Bank    of     Richfield     Springs    v. 

Clarke 899 

Bannon  v.  McCahill 893 

Barber  v.  Laney 1323 

Bareither  v.  Brosche 1199 

Barley  v.  Roosa 1158 

Barlow  v.  Barlow 1441 

Barnard  v.  Orantz 1059 

Barnes  v.  Gill 995 

Barnes  v.  Levy 1191 

Barnes  v.  Seligman 1444 

Barnett  v.  Weber 894 

Barney  v.  Fuller 791 

Barnum  v.  Fitzpatrick 1032,  1046 

Barrett  v.  Weber 899 

Barren  v.  Brummer  741 

Barry  v.  Smith 1032 

Barth  v.  Backus 748 

Barth  V.  Barth 672 

Bartlett  v.  Mudgett 1420 

Barton  v.  Govan 797 

Batcheldor  v.  Nugent 1183 

Bates  V.  Gorman 1420 

Batterman  v.  Albright 1158 

Baumler  v.  Ackerman   1183 

Baumann  v.  Jefferson 846 

Baumiller   v.    Workingman's   Co- 
operative Association 882 

Baum's  Castorine  Co.  v.  Thomas. .  1420 
Baxter  v.  Brooklyn  Life  Ins.  Co..   882 

Bayer,  Matter  of 1222 

Beach  V.  Beach 700 

Beach  v.  Kidder 878 

Beach  v.  Sterne 1142,  1148 

Beadleston  v.  Beadleston 700 


Beardslee  v.  Dolge 992 

Beardsley  v.  Pope 1380,  1413 

Beard  V.  Snook 1059 

Bechtle  v.  Manhattan  R.  Co 1104 

Becker  v.  Becker 682 

Bedell  v.  Kennedy 1142 

Bedell  v.  Kirk 790 

Bedford,  Matter  of 1222 

Beebe   v.    Supervisors   of  Sulli- 
van       911 

Beers  v.  Wallhizer 890 

Behrens  v.  Rodenburgh 1122,  1127 

Belappi  V.  Hovey 1409 

Bellinger  v.  Birge 777,  914 

Bell  V.  City  of  Rochester 912 

Bender.  Matter  of ....  1259,  1333,  1441 

Benedict  v.  Cooper 1221 

Benner  v.  Benner 722 

Bennett,  Matter  of 1142,  1210 

Bennett  v.  Goble 1444 

Bennett  v.  Levi 891 

Bennett  v.  Townsend 1444,  1445 

Bennett  V.  Wolfolk 1203 

Bergin  v.  Deering 1075 

Bernbaril,  Matter  of. 1075 

Betz  V.  Buckel 1059 

Beuerlin  v.  Hodges 1420 

Bicknell  v.  Speir 896 

Bick  V.  Reese 1441 

Biel  V.  Horner 846 

Binghamton    Gen.     Electric    Co., 

Matter  of 1172 

Bishop   V.   Hendrick 846 

Billinge  V.  Pickert 999 

Bishop  V.  Mosher 768 

Bixby  V.  Casino  Co 1032,  1034 

Blaechinska   v.    Howard   Mission 

and  Home 893 

Blake  v.  Bolte 1191,  1199 

Blankv.Blank 857 

Blakely  v.  Weaver 1414 

Blanchard  v.  Reilly 1181 

Blant  v.  Borchardt 878 

Blatzv.  Rohrback  890 

Blewitt,  Matter  of. 1100,  1111 

Blinks  V.  Blinks 700 

Bliss  v.  Wallis 894 

Bloom  V.  Huyck 1046 

Board    of     Health    of   Yonkers, 
Matter  ol 1059,  1076 


Table  of  Cases  Cited. 


Ixvii 


Board   of  Health   of  Yonkera    v. 

Copcutt 777 

Board  of  Street  Opening,  Matter 

of 1104 

Boelger  v.  Swivel 1198 

Bogardus    v.    N.    Y.    Life     Ins. 

Co. 833,  882 

Bolt  V.  Hauser 1183 

Bomanjee  Byramee  Colah,  In  Mat- 
ter of 1092 

Bonanza     Development     Co.      v. 

Hayes 812 

Bond  V.  Bond 1161 

Bonnett,  Matter  of 1274 

Bonney  v.  Paul , 1399 

Boon  V.  City  of  Utica 911 

Boon  V.  McGucken 1059,  1075 

Bosworth  V.  Higgins 833 

Bowe  V.  Brown 1441 

Bowery   Bank  of  N.   Y.  v.  Wid- 

mayer 1182 

Bowery  Nat.  Bank  v.  Sniffen ....    893 

Bowman  V.  Tallman 791 

Box  V.  Costello 1142,  1145 

Boyce,  In  re 1021 

Boyle,  Matter  of 727 

Boyle  V.  Grant 911 

Boynton  v.  Electric  Light  Co 1380 

Boynton     v.    Keeseville    Electric 

Light,  etc.,  Co 1380 

Brackett  v.  Griswold 1444 

Bradley,  Matter  of....  931,  1203,  1209 
Bradley   Fertilizer   Co.    v.  South 

Pub.  Co 878 

Brady  v.  Smith 846 

Braem   v.  Merchants'  Nat.  Bank 

of  Syracuse 746 

Brainard  v.  Hudson 1032 

Branth  V.  Branth 1059 

Brater  v.  Hooper 729 

Brehm  v.  Mayor,  etc 879 

Breiinan  V.  Brennan 700 

Brennan  v.  Ostrander   896 

Brentman  v.  Note 812 

Brewer  v.   N.   Y.  L.  E.   &  W.  R. 

Co 782 

Brewster  v.  Wooster 1444,  1445 

Bridges  V.  Sui)ervi8or8  of  Sullivan.  879 

Bridgeman  v.  Hall 931 

Briator  v.  Burr 825 


Brockman  v.  Meyers 878 

Broadway  and  Seventh  Ave.  R.  R. 

Co.,  Matter  of 709 

Broadway   and  Seventh  Ave.  R. 

Co.  V.  Acker,  Matter  of 899 

Brooks    V.     Farmers'    Creamery 

Ass'n 899 

Brooks,  Matter  of 1209 

Brounstein  v.  Sahlim 828 

Brounstein  v.  "Wile 828 

Brown  v.  Brown 879 

Brown  v.  Duane 970 

Browne  v.  Browne 700 

Brown  v.  Hyman 1412 

Brown  v.  May 764 

Brown  v.  Mapleson 1441 

Browning  v.  Hayes 1181 

Brown      v.      Niagara      Machine 

Co 1380,  1420 

Brugh,  Matter  of 1111 

Brummit  v.  Furness 788 

Brunner  v.  Downs 823 

Brush  V.  Batten 846 

Bucki  V.  Bucki 700 

Buckingham  v.  Corning 853 

Buckland  v.  Gallup 722 

Buderusv.  Immen 1122,  1132 

Buffalo  Press  Club  v.  Greene  ....    899 

Bullock  V.  Bullock 682 

Bultman  v.  Kindelon 1032 

Bump  v.  Daheny 1386 

Bundschuh  v.  Mayer 820 

Bunnell  v.  Ranney 1333 

Burger  v.  Burger 1220 

Burgess  v.  Burgess 685 

Burke  v.  Burke 694 

Burlingame  v.  Shelmire 878 

Burns  V.  Monell 809 

Burns  v.  Winchell 846 

Burrell  v.  Do  Sim 1046 

Burrus,  Ex  parte 953 

Burt  V.  The  Oneida  Community..   904 

Burtis  V.  Burtis  722 

Butler  V.  Jarvis  1092 

Button  V.  Hibbard 821 

Button  V.  Kiunetz 846 

Button  V.  Lusk 1396 

Byrnes  v.  Labagh 1441 

Byron,  Matter  of 1441 

Caldwell  v.  C.  P.  N.  &  E.  R.  Co..  826 


Ixviii 


Table  of  Cases  Cited. 


Calhoun  v.  Millard 911 

Callahan  v.  Searles 823 

Cambeis  v.  McDonald 736 

Cameron,  Slatter  of 978 

Cammerer  V.  MuUer 821 

Camp  V.  Burton 748 

Campbell,  Matter  of 1246 

Campbell  v.  Arbuckle 821 

Campbell  v.  Babcock 1032 

Campbell  v.  Campbell 878 

Campbell  V.  Hurd '.    896 

Campbell  v.  Scblesinger 890 

Campv. Smith..  ..   724 

Cancimino's  Towing,  etc.,  Co.  v. 

Cancimino 1059 

Canda  v.  Gollner 1059,  1199 

Capital  City  Bank  v.  Parent....    738 

Cargain  v.  Everett 1409 

Carhart,  Matter  of 1210 

Carpenter  V.    Butler 855 

Carpenter  v.  Carpenter 729 

Carpenters    and    Joiners    Union, 

Matter  of 904 

Carpenter  v.   Knapp   805 

Carroll  v.  Langan 1181a 

Carson  v.  Dessau 823 

Carstero  v.  Smalholz 896 

Carter  v.  Beckwith 1111 

Carter  v.   Board  of  Education  of 

Presbyterian  Church  of  U.  S 724 

Carter  v.Tallcott 791 

Case  V.   Campbell 931 

Case  V.  Hotchkiss 791 

Case  V.  Perew 790 

Castle  V.  Corn  Exchange  Bank..   846 

Catlin  V.  Catlin 700 

Cavanagh  v.  Ocean  Steam  Nav. 

Co 783 

Central  Nat.  Bank  v.  Seligman . .   746 

Chalker  v.  Chalker 1333 

Chamberlain  v.  Chamberlain  696,  700 

Chambers  V.  Chambers 674,  678 

Chapman   v.   Forbes 879 

Chase  v.  Chase 700 

Chatfield  V.Hewlett..  1142,  1214,  1323 

Chatfield  v.  Reynolds 1420 

Cheever   v.    Pittsburgh   S.,    etc., 

R.  Co 1441 

Chevers  v.  Duncan 1441 

ChildB  V.  Tuttle 812 


Chrigstrom  v.  McGregor 914 

Chism  V.  Schipper 1150 

Christian     Jansen     Co.,     limited. 

Matter  of. 1172,  1174 

Church,   Matter  of 1101 

Churchman  v.   Merritt 1444 

Church  v.   Van  Buren •.    85& 

Claflin  V.  Gordon 757 

Claflin  v.  Smith 748 

Clark  Matter  of.. 723,  1251,  1252, 1333 

Clark  v.  Clark 1075 

Clark  v.  Costello 846 

Clark  V.  Hooper 1894,  1396 

Clark  v.  Snyder 1420 

Clegg  V.  Aiken 1441 

Clementi  v.  Jackson 970 

Cleveland  v.  Johnson 1183 

Cleveland  v.  Wilder 1435 

Clift  V.  Moses 729 

Coatesworth  v.  Thompson 1032 

Cobb  V.  Dolphin 1142 

Cockefair  v.  Cockefair 1059 

Cocks  V.  Haviland 724 

Coffin  V.  City  of  Brooklyn 879 

Cohen,  Matter  of 997 

Cohen  v.  Cohen 700 

Cohn  V.   Kauffman 849 

Colah,  Matter  of 1092 

Colby  V.  Colby 734 

Cole  V.  Roby 791 

Colgan  V.  Dunne* 729 

Colliery.  Miller 729 

Collins  V.  Beebe 1187 

Collins  V.  ShaflFer 1404 

Collins  V.  N.  Y.  Central,  etc.,  R. 

Co 788 

Collins  V.  Manning 827 

Collinsv.  Ralli 846 

CoUyer  v.  Collyer 878 

Colne  V.  Girard 1198 

Columbus  "Watch  Co.  v.  Hoden- 

pyl 727 

Commercial  Nat.  Bank  v.  Taylor.   920 

Compton  V.  "  The  Chelsea" 1 041 

Comstock  V.  Hopkins 891 

Cone  V.  Warner 897 

Conklin  V.  Tice 890 

Consalus,  Matter  of 722 

Convillev.  Shook 878 

Conway  v.  Carpenter 826 


Table  of  Cases  Cited. 


Ixix 


Conyngham  v.  Duffy 1183 

Cook,  In  re 1092,  1101 

Cooman  v.  Board  of  Education  of 

Rochester 1181 

Cooper,  Matter  of 1223,  1328 

Cooper  V.  People 953 

Corbett,  Matter  of 1314 

Cornel  v.  Heinze 1444 

Cortwright,  Matter  of 1209,  1214 

Cornwell  v.  Parke 812 

Corwin,  Matter  of 992,1335 

Cosulich  V.  Standard  Oil  Co 788 

Cottle  V.  Sullivan 1032 

Courtney  v.  Manheim 805 

Cowdrey  v.  Turner 1032,  1038 

Cox,  Ex  parte 953 

Crane,  Matter  of 1203 

Crane  v.  Powell 901 

Crisp  V.  Rice .1399 

Crosby  V.  Clarke 879 

Cross  V.  Devine 837 

Crossman  v.  Crossman 1214 

Crouse  v.  Bailey 768 

Crouse  v.  Johnson  1412 

Crown    Point   Iron   Co.    v.   Fitz- 
gerald   1380 

Cruikshank  V.  Gordon  805 

Culmane  v.  Schmidt 1396 

Cuniff  V.  Beecher 823 

Cunningham  v.  Hatch 1059,  1075 

Cunningham  v.  Parker 729,  731 

Curser,  Matter  of  Adm'n  of 1284 

Cushman  V.  Burritt 821 

Cushman  v.  Oothout  ..• 846 

Cutler  V.  Am.  Exchange  Nat.  Bk.   879 

Cutler  V.  Morris 1441 

Dakin  v.  Walton 878 

Dailey  v.  Dailey 700 

Daniels,  Matter  of 1361 

Davenport  v.  Long  Island  Ins.  Co.ll42 

Davis  V.  Davis 668,  1059 

Davis    V.    Delaware    &    Hudson 

Canal  Co. 878 

Davis  V.  Fiske 841 

Davis  V.  Kling 878,  896 

Davis  V.  N.  Y.  Concert  Co.,  lim- 
ited  1158 

Dawson  v.  Parsons 1059 

Day  V.  Brosnan  1188 

Day  V.  Day 678 


Day  V.  Harris 848 

Day   V.    Studebacker  Bros.  Mfg. 

Co 894 

Dean  V.  Raplee 825 

De  Bevoise  v.  Ingalls 1420 

De  Bevoise  v.  N.  Y.,  Lake  Erie  & 

W.  R.  Co 781 

De  Carrillo  v.  Carrillo 682 

Decker  V.  Decker ,.    740 

Decker  v.  Kitchen 919 

Deegan  v.  Karp 1441 

Deeley  V.  D wight 846 

Deeves  v.  Lockhart 797 

De  Forest,  Matter  of 1227 

Degnan  v.  Ransom 797 

Delahunt  v.  ^tna  Ins.  Co.  of  Hart- 
ford     884 

De  Lancey  v.  Piepgras 1059 

Dellisser  v.  N.  Y.,   New  Haven, 

etc.,  R.  Co 77S 

De  Matties  v.  Le  Maida 823,  82& 

Demarest  v.  Mayor,  etc.,  of  N.  Y.  934 

De  Meliv.  De  Meli 694 

Denning  V.  Schieffelin 1183 

Denniston  v.  Trimmer 1420 

De  Piei-i'is,  Matter  of 1 323 

De  Puy  V.  Cook  891 

Desbrough  v.  Desbrough 70O 

Dewitt  V.  Gunn 1075,  1199 

Dexter  v.  Dexter 846 

Deyo  v.  Morss 764 

Di  Carlo,  Matter  of 1142 

Dickel  V.  Yates 1220,  1222 

I>ickerson  v.  Valentine 853 

Dickinson  V.  Dickinson 683 

Dickinson  V.  Price 1046 

Dieckerhoff  V.  Ahlborn 1015 

Dieckerdorf  V.  Alder 879 

Dieffenbach  v.  Roch 854 

Dimock,  Matter  of 904 

Diss  Debar,  In  re 953 

Dod.ls  V.  Hakes 1142 

Dodge,  Matter  of 1122, 1220, 1222 

Dodge  V.  Colby 812 

Dodge  V,  St.  John 1122 

Dodge  V.  Stevens 729 

Doniinick  v.   Domiriick I{)'.t2,  1101 

Donelly  v.  O'Day 1032 

Donlon,  Matter  of 1215 

Donner  v.  Ogilvie, 1444 


Ixx 


Table  of  Cases  Cited. 


Dorendinger  v.  Tschechtelin 827 

Dorthy  V.  Servis 746 

Doty  V.  Campbell 836,  139G 

Douglass  V.  Mainzer 1181 

Dougherty,  Matter  of 727 

Douglass  V.  Leonard 722 

Doyle  V.  Doyle 1075 

Doyle  V.   Rector,   etc.,   of  Trinity 

Church 894 

Drake  v.  Grant 837 

Dramatic  Fund  Association,  Mat- 
ter of  . 1172 

Drew  V.  Longwell 1172 

Drummond  v.  Fishei- 1032 

Dryer  v.  Sexsmith 1404 

Du  Bois  V.  Brown 1333 

Du  Bois  V.  Decker 797 

Duclos  V.   Benner 722 

Dudley  v.  Brinckerhoff 1420 

Dudley  v.  Parker 890 

Duel  V.  Sykes 1380 

Duffus  V.  Bangs 1048 

Duffus  V.  Cole 1199 

Dumois  V.  Hill 879 

Dunham,  Matter  of 724 

Dunn,  Matter  of. 1092,1101 

Dunn  V.  O'Keefe 1380 

Durant  v.  Abendroth 1441 

Durant  Land,  etc.,  Co.  v.  Thomp- 
son-Houston Electric  Co 1032 

Duston,  Matter  of 1209 

Dutchess   Co.    Mut.    Ins.    Co.     v. 

Van  Wagonen 748 

Dyett  V.  Hyman .    846 

Earl  V.  Collins 1424 

Earle  v.  McGoldrick 1032,  1047 

Ebbinghouscn  v.  Worth  Club 904 

Eberspacher  v.  Boehm 1013 

Eddy,  Matter  of .,..1287,  1288 

Edward  Thompson  Co.  v.  Loben- 

thal 1444 

Edwards  v.  N.  Y.,  etc.,  R.  Co .. . .   786 

Edwards  v.  Woods 893 

Egan  V.  Lynch 1059 

Eighme  v.  Rome,  Watertown,  etc., 

R.  Co 788 

Eisner  v.  Avery 727 

Eldred  v.    Fowdney 827 

Elliott  V.  Barry 890 

Ellis  V.  N.Y.,  L.  E.  &  W.  R.  R.  Co.  782 


Elson  V.  Murray 1420 

Ellsworth  V.  Hinion „„    ....1354 

Ellwood  V.  Northrup 1122,  1128 

E     M.     Boynton    Saw    and    File 

Co.,  Matter  of 1172,  1176 

Emerson  V.  Emerson 700 

English  V.  Major 827,  828 

Erwin  v.   Dezell 805 

Ensign  v.  Ensign 722 

Eipii table    Life     Ins.    Society    v. 

Hughes 1441 

Inequitable  Life  Assurance  Soc.  v 

Olyphant 1441 

Estelle  V.   Dinsbeer 1032 

Evans  v.  Ferguson 1441 

Fagan  v.  Strong 736,  1444 

Fairlie  v.  Bloomingdale 893 

F.  A.  Kennedy  Co.  v.  McCormack.1444 
Fall  Brook  Coal  Co.  v.  Heck9her..l075 

Falls,  Matter  of. 1222 

Faneuil  Hall  Nat.  Bank  v.  Bus- 
sing  1203 

Farley  v.  Picard 820 

Farmer  v.  Medico  Legal  Journal 

Association 896 

Farmers'  Loan  and  Trust  Co.  v. 

Bankers,  etc.,  Tel.  Co 1172 

Farmers'  Loan   and  Trust  Co.  v. 

McKenna 1209,  1215,  1323 

Farrell  v.  Friedlander 828 

Farrell  v.  Harripon 893 

Farrelly  v.  Hubbard 846,  1414 

Farish  v.   Austin  855 

Faylis  estate.  In  re 089 

Feeley  v.  Jones 814 

Feeney   v.  Minnisceongo   Towing 

Co 790 

Feickert  v.  Freisem 1045 

Fenlon  v.  Dempsey — 1075 

Ferguson  v.  Arnow 828 

Ferguson  V.  Hubbell 788 

Ferguson  V.  Wooley 1161 

Fernbacher,  Matter  of 1333 

Ferris  v.  Disbrow 722 

Fessenden  v.  Blanchard 1444 

Field  V.  Dessar 1122 

Finch  V.  Galigher 848 

Fink  V.  Berg -. 729,  733 

First  Nat.  Bank  of  Ballstou  Spa 

V.  Supervisors  of  Saratoga 879 


Table  of  Cases  Cited. 


Ixxi 


First  Nat.  Bank  of  Jersey  City  v. 

Miller 741 

First  Nat.  Bank  of  Plattsburgh  v. 

Fitzpatrick 1059,  1075 

Firth  V.  Veeder 1397 

Fischer  v.  Langbien 823,  1068 

Fisher  V.  Martin 879 

Fish's     Eddy    Chemical     Co.    v. 

Stevens 1399 

Fisk  V.  Fisk 672 

Fitch,  Matter  of 992 

Fitzgerald  V.  Geils 805 

Fitzgerald  v.  N.  Y.  C.  &  H.  R.  R. 

Co 783 

Fitzsimmons  v.  Curley 1444 

Fitzsimmons  v.  McConnell 790 

Flandrow  v.  Hammond 879 

Flannery    v.    Cornell   Steamboat 

Co 790 

Flannery  v.  Shahagian 1142,  1145 

1148,  1150 

Flatow  V.  Von  Bremsen 838 

Fleming  V.  Tourgee  1187 

Floyd  V.  Clark 1166 

Flynn  v.  Lynch 1122 

Foerster  v.  Squier 894 

Foley,  Matter  of 931 

Folts,  Matter  of 1221 

Fondavila  v.  Jourgensen 896 

Ford    V.    Binghamton   Hydraulic 

Power  Co 709 

Ford  V.  Livingston 1104 

Forman  v.  Forman 669 

Forstman  V.  Schulting 1059 

Fort  V.  Mulligan 1380 

Foster  v.  Wilkinson 1187 

Foulks  V.  Foulks 1323 

Fowler  v.  Fowler 694 

Fowler  v.  Haynes 1381 

Foxv.  Fox 6S9 

Fox  V.  Hodge  741 

Francesca,  Matter  of 953 

Franey  V.  Smith  748,  1187,  1194 

Frankel  v.  Wathen 878 

Fraser  v.  Granite  State  Provident 

Ass'n 709 

Fraser  v.  Ward 1444 

Freeborn  v.  Badgley 1399 

Freck  v.  Hughes 84G 

Freel,  Matter  of 970,  972 


;  Freeman  v  Coit 1333 

Freeman  v.  Dutcher 855 

Freeman  v.   Grant 879 

Fi-ench,  Matter  of. 1323 

Fretcher  v.  Franks 848 

Frickel  v.  Frickel 700 

Frink  v.  Stevens 1420 

Frisbie  v   Averell 766 

Fritz  V.  Pultz 1423 

Fromme  v.  Gray 1059 

Frost  v.  Frost 1420 

Fucha  V.  Cohen 1032 

Fuller,  Matter  of 1336 

Fuller  Electrical  Co.  v.  Lewis 741 

Gage  V.  Peetsch 1444 

Gaines,  Matter  of....  1059,  1221,  1232 
Gallagher    v.    David    Stevenson 

Brewing  Co 1032 

Gallagher  v.  Stoddard 827 

Galle  v.  Tode 738 

Galusha  v.  Galusha 700 

Gamman  v.  Berry ,  1063,  1199 

Gardenier  v.  Furey 741 

Garling  v.  Ladd 1420 

Gastenhoefer  v.  Clair 799 

Gates  v.  McDonald 1444 

Gates  v.  Williams 893 

Gavin,  Estate  of 1301 

Gedney  v.  Kingsley 797 

Gee,  Matter  of 1218 

Genin  v.  Schwenk 846 

Gensay  V.  Liddle 1435 

Geoghegan    v.    Atlas    Steamship 

Co 783 

Germ  Proof  Filter  Co.  v.  Pasteur 

Filter  Co 805,  812 

Gerould  v.  Crank 1396 

Gerstein  v.  Fisher   764,  766 

Gerton  Carriage   Co.  v.  Richard- 
son  1059,  1199 

Gibbons  v.  Van  Alstyne... .  1410,  1423 

Gibson  v.  Blakley 722 

Gideon  v.  Dwyer 805,  810 

Gierhon  v.  Ludlow 827 

Gifford  V.  Rising 740,  1203,  1444 

Gilbert  v.  Deshon 1441 

GildersleevH  v.  Lester 1181.  1J87 

Giles   Lithographic,    etc.,    Co.    v. 

Recamier  Mfg.  Co 902,  1142 

Gilman  v.   Jenkins 1420 


Ixxii 


Table  of  Cases  Cited. 


Glaser  v.  Cumisky 1057 

Gleason  v.  Blanc 970 

Goddard  v.  Cassell 846 

Goelet  V.  Roe 1032 

GoflFv.  Bliss 1394 

OoflFv.  Vedder 1038 

Goldsmith  V.  Wells  Co  899 

Goodhartv.  Latting 1158 

Goodwin  v.  Griftis 1015 

Goodyear    Dental,    etc.,    Co.    v. 

Friselle 855 

Goram  V.  Cable 890 

Gossler  v.  Lissburger 836 

Gould,  Matter  of 1284 

Gould  V.  Patterson 1398,  1420 

Grace  v.  Curtiss 1201 

Grafton  v.  Brigham 1043,  1047 

Graham  v.  Scripture 855 

Grand  Lodge  of  K.  of  P.  v.  Man- 
hattan Savings  Institution 1187 

1194,  1195 

Grant,  Matter  of 1106 

Grant  V.  Cottrell 828 

Grant  v.  Crittenden 1444 

Grant  V.  Tefft 768,  896 

Graves  v.  Scoville IISI 

Gray,  Matter  of 1222,  1333 

Gray  v.  Gray 700,  708 

Green  v.  Griswold 740 

Green  v.  Waite 1420 

Oregg  V.  Boyd 1048 

Gregg  V.  Witteman 846 

Gregory,  Matter  of., 1210,  1248 

Gregory  v.  Fitchner 846 

Greite  v.  Henricks 1059 

Grening,  Matter  of.  ..1142,  1145,  1146 
Gridley  v.  College  of  St.  Francis 

Xavier 1092,1100 

Gridley  v.  Gridley 682 

Griebel  v.  Rochester  Printing  Co.  814 

Grinnell  v.  Sherman 791 

Griswold  v.  Met.  Elevated  R.  Co.  722 

Guibert  v.  Sanders 722 

Griffin  v.  Jackson 1378,  1380 

Griggs  v.  Grinn  1441 

Grinnell  v.  Sherman 1187,  1198 

Gullman  v.  Sharp 846 

Gurney  v.  Grand  Trunk  R.  Co. . .   783 

Gustaveson  v.  McGay 1142 

Gustaveeon  v.  Otis 878 


Guyon  v.  Rooney   1380,  1392 

Haasv.Colton 766 

Hagan  v.  City  of  Brooklyn 934 

Haines  v.  Judd 1444 

Ilale  V.  Mason 1444 

Ilallett  v.  Carter 846 

Hall,  Matter  of.. 1059 

Hall  v.  Germain 890 

Hall  v.  Hall 689 

Hall  v.  Kehoe 827 

Halsey,  Matter  of. 1323 

Halsey  v.  Hart 1420 

Halsted  V.  Halsted 682,  700 

Ilamiiton,  Matter  of. 1214,  1220 

Hamilton  Park  Co.,  Matter  of .. . .  1172 

Hampton  v.  Boylan 1415 

Hand  v.  Shaw   1444 

Hankev.  Friederich 820 

Hanaman  v.  Muckle 1378 

Handshaw  v.  Arthur 1380 

Hanover  Fire  Ins.  Co.  v.  Tomlin- 

son 855 

Harbeck  v.  Pupin 919,  920 

Hardie  V.  Andrews 1122,  1132 

Harley  v.  Fitzgerald 1380,  1396 

Harding  V.  Ellston 1397,  1425 

Harriott,  Matter  of. 1226 

Harris,  Matter  of . . 970 

Harris  v.  Clark 854,  855 

Harris  v.  Hiscock 1142 

Harris  v.  Treu 1047,  1555 

Harmon  v.  Vanderbilt  Hotel  Co..   709 

Hart  v.  Albright 741 

Hart  v.  Johnson  1059,  1063 

Hartwell  v.  Young 1396 

Harvey  v.  Van  Dyck 1420 

Habbrouck  v.  Stokes 1032 

Hasse  v.  Mattheson 1075 

Hastings    v.    Giles    Lithogrophic 

Co 812 

Hatch  V.  Matthews     ...    814 

Hatch  v.  Sigman 1257 

Hathaway  v.  Jenks 1397 

Hathaway    v.    Orient    Insurance 

Co 896 

Havemeyer,  Matter  of 1222 

Havens,  Matter  of 1323 

Hawk  V.  Am.  News  Co 814 

Hawke  v.  Hawke 1278 

\  Hayes  r.  Consolidated  Gas  Co 970 


Table  of  Cases  Cited. 


Ixxiii 


Hayward  V.  McDonald 729 

Hay  ward  V.  Place 722 

Hazard,  Matter  of 1284 

Hazzard  v.  Flury 827 

Heald  v.  Van  Siclen 846 

Heckeman  V.  Young 919 

Hegewisch  v.  Silver 1172 

Helmke  v.  Stetler  820 

Helburn  v.  Rosenson 857 

Hemmer  V.  Hustace 1158,  1159 

Henry  v.  Henry 1274 

Hentz  V.  Phillips 722,  729 

Herbst  v.  Hagenaers 1142,  1148 

Herman  v.  Stalp 854 

Hesdra,  Matter  of 1220 

Hess,  Matter  of, 1059 

Heusei-,  Matter  of. 1323 

Hewitt  V.  Hewitt 734 

Hewitt  V   Newburger. 823 

Hewlett  V.  Elmer 1221 

Heyman  v.  Smadbeck 1142 

Hickey  v.  Morrell 836 

Higgins  V.  Dakin 777 

Higgina  V  Dewey 848 

Hillender V.Hall 848 

Hill  V.  Horton 110 

Hills  V.  Peekskill  Savings  Bank. .  1059 

Hills  V.  Sommer   896 

Hinkley  v.  Troy,  etc.,  Horse  R. 

Co 1420 

Hinman  v.  Pierce 1444 

Hitchcock  Mfg.  Co.,  Matter  of....  1172 

Hodgman,  Matter  of 724,  1323 

Hoff  V.  Coumeight 846 

Hoffman  v.  Barton 1396 

Hoffman  v.  Van  Allen 1032 

Hogan  V.  Cavanaugh 729 

Holeman  V.  Randall 846 

Holland  Trust  Co.  v.  Consolidated 

Gas,  etc.,  Co 720 

Hollenbeck  v.  Knapp 1425 

Hollenderv.  Hall 848 

Holier  v.  Apa 878 

Holly  Mfg.  Co.  V.  Venner..l059,  1075 

Holmes  v.  Evans 1444 

Holmes  v.  Jones 806,  813,  814 

Hoizderber  v.  Forrestal 1032 

Home     Provi<lent    Safety    Fund 

AHs'n,  Matter  of 1172 

Hood  v.  Hayward 896,  920 


Hood  v.  Hood 1220 

Hopkins  v.  Lane 1246 

Hopkins  v.  Riggs 837 

Hopner  v.  Gowan 823 

Hopper,  Matter  of 1059 

Horning  v.  Smith 1422 

Horrv.  Seaton 1420 

Horton  v.  Hawkins 1404 

Hosley,  Matter  of 1032 

Hovey  v.  Bromley 846 

Hovey  V.  Ellicott   .-.1075 

Howe  V.  Oldham 825,  828 

Hoyt  V.  Hoyt 1209,  1220 

Hoy t  V.  Malone 893 

Hoyt  V.  See 1380 

Hubert  v.  Bedell 820 

Hughes  V.  Jones 1092 

Humphreys  v.  Prudential  Ins.  Co.  828 

Huntley  v.  Huntley 684,  689 

Hurd,  Matter  of 1323 

Hurlburt,  Matter  of..  1138,  1209,  1323 
Hurst  V.  N.  Y.  Produce  Exchange.  1142 

Hussey  v.  King 820 

Hussey  v.  N.  Y.  Recorder  Co 814 

Hutchinson  v.  Grout 1399 

Hutson  V.  Weld 1198 

Hyde,  Matter  of ]  083 

Hyde  V.  Houston 741 

Ilynes,  Matter  of 1122 

Hynes  V.  Patterson 846 

Importers',  etc.,  Bank  of  N.  Y.  v. 

Quackenbush 1183 

In  re  Importers',  etc..  Exchange 

of  New  York 1172 

Inderlied  v.  Whaley 1441 

Ingram  v.  Root 827 

Isaacs  V.  Flahive 825,  1059 

Isaacs  V.  Isaacs 1059 

Iselin  V.  Henlein 738 

Isola V.Weber 783 

Ives  V.  Quinn  878 

Ives  V.  Ives 685,  694 

Jacobi  V.  Haynes 799 

Jacobs  V.  Day 896 

Jacobaon.v.  Jacobson 700 

Jacobs  V.  Zeltner 1045,  10r)5 

Jacoby  v.  Ockei-hausen 820 

Jacksan,  Matter  of. 1092,  1101 

Jacquin  v.  Ja<'(jiiiii 1059 

Jael  v.   Ritterman 727 


Ixxiv 


Table  of  Cases  Cited. 


JafiFray  v.  Davis 896 

Janes,  Matter  of 1274 

Jansen,  Matter  of. 727 

Jaynes  v.  Jaynes 1392 

Jenks  V.  Quinn 1158 

Jennings  v.  Burton  Co 820 

Jennings   v.    Grand  Trunk   Rail- 
way Co 884 

Jennings  v.  Lancaster 1183 

Jennings  v.  McCarthy 1046 

Jesper  v.  Press  Pub.  Co 814 

Jewelers'  League  v.  De  Forest. . .   894 

Jex  V.  Strauss 836 

Johnson,  Matter  of 1333 

Johnson  v.  Girdwood 828 

Johnson  V.  Johnson 689 

Johnson  v.  Long  Island  R.  Co 783 

Johnson  v   Sjoiett 814 

Johnston  v.  Garside 928 

John   W.    Lovell   Co.    v.    Hough- 
ton     812,  813 

Jones,  Matter  of 1075,  1076,  1223 

Jones  V.  Hughes 1101 

Jones  V.  McCaddin 827 

Jones  V.  Newton 1441 

Jordan  v.  Board  of  Education .  970,  992 

Jugla V.  Trouttet ,  ....    878 

Jung  V.  Starin 790 

Kain  v.  Larkin 825 

Kane  v.  Aldridge 879 

Kantrowitz  v.  Kulla 919 

Katz  V.  Schnaier 1278 

Kaufman,  Matter  of. 1220 

Keef,  Matter  of. 1220 

Keegan  v.  Sage 821 

Keeler,  Matter  of. 1333 

Keenan  v.  Brooklyn  City  R.  R.  Co.  783 

Keene  v.  Tribune  Asso 814 

Keller  v.  Zeigler 1199 

Kelly  V.  Bonesteel 1424 

Kelly  V.  Gould 836 

Kelly  V.  Kelly 684 

Kelly  V.  Pitcher 1122,  1127 

Kelly  V.  Smith 1032 

Kelsey  v.  Lyon 846 

Kemp  V.  Peck 878 

Kendrick  v.  "Wandall 1059,  1199 

Kennah  v.  McColgan 1312 

Kenney  v.  Livery  Stable  Keepers* 
Ass'n 1420 


Kenney  v.  N.  Y.  Central,  etc.,  R. 

Co 787 

Kent  V.  Sturges 1032 

Kerns  v.  Hagenbuckle 821 

Kerr  v.  Delaney 738 

Kerr  v.  Dildine 741 

Kerrv.  Kerr 689 

Kessler  v.  Lockwood 820 

Kerwin  v.  Valentine 1441 

Ketcham  v.  Fox 890 

Keyes  v.  Keyes 672 

Killmer  v.  Messling, 1420 

Kilroy  v.  Wood 740 

Kimball  v.  Rich 1420 

King  V.  Barnes 1059,  1075 

King  V.  Brewer 672 

King  V.  Flynn 1075 

King  V.  Munzer 1441 

King  V.  Townshend 903 

Kingman  v.  Frank 741 

Kingsbury  v.  Bradstreet  Co 813 

Kingsford  v.  Butler 1386,  1414 

Kingsley  v.  Kingsley 814 

Kingsley  v.  Melcher 878 

Kinmouth  v.  McDougall 820 

Kirsch  v.  Kirsch 700 

Kitchen  v.  Lowery 741 

Kittel  V.  Stueve 1059 

Kittleman  v.  Bradt. ...      722 

Klemm  v.  N.  Y.  C.  &.  H.  R.  R. 

Co 783 

Kley  v.  Healey 746,  1441 

Kline  v.  Hibbard 828 

Klock,  In  re 1092,  1101 

Knapp  v.  Valentine 855 

Knickerbocker  v.  Gould 878 

Knight  V.  Sackett,  etc.,  Lith.  Co.   846 

Knight  V.  "Wilson 1423 

Knoch  V.  Funke 1444 

Knor  V.   New  York  State  Mutual 

Benefit  Association 882 

Knox  V.  Met.  Elevated  R.  Co . . . .    722 

Knox  V.Nobel 1284 

Koch,  In  re 1213 

Koehler  v.  Gorman 768 

Koehler  v.  Olsen 741 

Kohn  v.  Manhattan  R.  Co 1441 

Kokoma     Straw     Board    Co.    v. 

Sacho 1444 

Kolzem  v.  Broadway  etc.,  R.  Co..  823 


Table  of  Cases  Cited. 


Ixxv 


Korueman  v.  Fred.  Hower  Brew-  i 

ing  Co 846 

Kostei*s  V.  Brooklyn  B.,  etc.  R.  Co.  825 

Kraemer  v.  Adelsberger 722 

Kramer  v.  Amberg 1032 

Kreiser  v.  Scofield 823 

Krom  V.  Kursheedt 144i 

Kruger  V.  Galewski 879 

Kujek  V.  Goldmann 836 

Kusselewskey  v.  Fabricant 1412 

Lafrentz  v.  Mass 1444 

Lambert  V.  Craft 1209 

Lamb  V.  Lamb 878 

Lamb  v.  O'Reilly 846 

Lamb's  "Will,  In  re 1333 

Lamson  Cons.  Store  Service  Co.  v. 

Coyningham 709,  899 

Laney  v.  Laney 722 

Lane  v.  Young 1397 

Lang,  Matter  of 1323 

Langdon  v.  N.  Y.  L.  E.,  etc.,  R. 

Co 777 

Langerman  v.  McAdam 1075 

Lang  V.  Everling 1032,  1038 

Lansing  v.  Stevens 1396 

Lanpher  v.  Clark 805 

Laramie,  In  re 1333 

Larocque  v.  Harvey 1423 

Lashaw  v.  Croissant 893 

Lassen  v.  Aronson 778 

Lawatsch  v.  Cooney 846 

Lawrence,  Matter  of 1210,  1323 

Lawrence  v.  Barker 896 

Lawrence  v.  Harrington.  ..1059,  1068, 

1075 

Lawrence  v.  Spence 817 

Lawrence  v.  Townsend 722 

Lawson  V.  Douglass 878 

Lawyer  V.  Fritcher 817 

Lay  tin,  Matter  of. 1274 

Lazzarone  v.  Oishei 894 

Learned,  Matter  of 110 

Ledei-er  v.  Adams 848 

Locv.Lee 700 

Lee  v.  Van  Voorhis  783 

Le  Fev  re  v.  Phillips. 738 

Leinkaiif,  Matter  of 1209,  1215 

Leloup  v.  Eschausse 817 

Lent  V.  N.  Y.  and  M.  R.  Co.. 875,  877 
Leo  V.  Joseph  1013 


Leonard  v.  Bowman 1187 

Lesson  v.  Mass.  Mut.  Benefit  As- 
sociation     896 

Lettis  v.  Horning 820 

Levy  v.  Beacham 1182 

Lewis,  Matter  of 1284 

Lewis  &  Fowler  Mfg.  Co.,  Matter 

of. 1172 

Lewis  V.  Douglas 768 

Lewis  V.  Duane 1158 

Lewis  V.  Ocean  Nav.  Co 846 

Lichtenberg  v.  Hertfelder . . . .  741,  746 

Liebstadter  v.  Federgreen 825 

Linde  v.  Republic  Fire  Ins.  Co...  1142 

Linderman  v.  Farquharson 893 

Lindsay  v.  Tansley 1378 

Lingeweiler  v.  Lingsweiler 1187 

Link  V.  Moore 814 

Liscomb  v.  Agate 878 

Livingston  v.  Sage 1142 

Livingston's    Sportsmen's     Ass'n, 

In  re 1172 

Loader,  Matter  of. 972 

Loder  v.  Whelpley 1220 

Loeber  v.  Roberts 788 

Loeb  V.  Keyes 878 

Loeder,  Matter  of. 970 

Loesche  v.  Griffin 1444 

Logan     V.      McCall      Publishing 

Co 11S3,  1197 

Long  Island  Bank  v.  Boynton 897 

Longrill  v.  Downey 1420,  1444 

Long  V.  Stafford 919 

Longatreet  v.  Sawyer 1444 

Loubat  V.  Le  Roy 904 

Lowe,  Matter  of 1100 

Lowentbal  V.  Lowenthal 700 

Lowman  v   Sprague 1 032 

Luna  V.  Langbein 978 

Liiedeke  v.  Coarsen 1075 

Luhrs  v.  Comnioss 1048 

Lusak,  Matter  of 723 

Lynch,  Matter  of. 1304 

Lynch  v.  Butler 1441 

Lynch  v;  Lauer 894 

Lyon   v.   Industrial   School  Asso- 
ciation     733 

Lyon  V.   Park 1444 

McAllaster  v.  Bailey 84rt 

McAveney  V.  Brush. 1059 


Ixxvi 


Table  of  Cases  Cited. 


McBain  v.  Speelman 748 

McBride  v.  McBride..694,  696,  699,  700 

McButt  V.  Herrick 855 

McCabe  V.  Goodfellow 904 

McCahill  V.  McCahill 694 

McCarthy  v.  McCarthy 684,  700 

McCarthy  v.  Crowley 1380,  1420 

McCarty  V.  Wells 890 

Macaulay,  Matter  of 1213 

Macaulay  v.  Palmer 1059 

McClain  v.  Schofield 878 

McClouth,  Matter  of 1318 

McConihe  v.  Palmer 768,  841 

McCorkle  v.  Hermann 1203 

McDonald  v.  Gray 1444 

McDonald  v.  McDonald 741 

McDonald  v.  McLaury 1032,  1033 

McDonald  v.  Peet 1444 

McDonough  v.  Buffalo  State  Asy- 
lum     896 

McDougall  V.  Gray 1444 

McFarland,  Matter  of. 953 

McGill  V.  Weil 1199,  1380 

McGinness,  Matter  of 1246 

McGowan,  Matter  of 723 

McGrath,  Matter  of 970 

McGregor  v.  Sprott 1142 

McGrory     v.     Henderson,     Mat- 
ter of. 931,  932 

McGurie  v.  Gallaghei- 855 

McGurie  v.  Hudson 1183 

McHugh  V.  Astrophe 1444 

Mcllhargy  v.  Chambers 748 

Mclntyre  v.  Allen 1181 

Mclntyre  v.  Mclntyre 689 

McKane  v.  Adams 904 

McKay,  Matter  of 723 

Mackay  v.  Kahn 878 

McKenzie  v.  Harrison 896 

McKuskie  v.  Hendrickson 1425 

McLaughlin  V.  Harriott 846 

McMillan  v.  Cronin 825 

McMuUin  v.  Mackey 1380,  1396 

McNulty  V.  SoUey 1142 

McQueen  v.  Lockwood 846 

Maders  V.  Whallon...., 1202 

Maeske  v.  Smith 805 

Mahan  v.  Sewell 1032 

Maine,  Matter  of 723 

Maber  v.  Hymon 791 


Malone  v.  Knowlton 820 

Manchester  Paper  Co.  v.  Moore..   878 

Manchester  v.  Tibbetts 846 

Mander  v.  Low 722 

Manhattan  Life  Ins.  Co.  v.  Gos- 

ford 1032 

Mann  v.  Dennis 1420 

Manning,  Matter  of. 972 

Mansfield,  Matter  of 1318 

Manzinger  v.  Courier  Co 904 

Marie  v.  Garrison 901 

Marine  Bank  of  BuflFalo  v.  Fiske. .   846 

Markey  v.  Diamond 836,  838 

Mark  v.  La  Societe,  etc 848 

Marks  v.  Townsend 823,  827 

Marsh  V.  Hand 820 

Marsh  v.  Masterson 1056 

Marsh  v.  Village  of  Lansingburgh .  1420 

Mart,  Matter  of  the 1172 

Martin,  Matter  of 1142,  1147 

Martin     Cantine     Co.     v.    Wars- 

haeur 1059,  1075 

Martin  v.  Dry  Dock,  etc.,  R.  Co..  1284 
Martin  v.  N.  Y.,  Ontario  &  West- 
ern R.  Co 788 

Marx  V.  Press  Publishing  Co.  805,  814 

Marx  V.  S^iaulding 1183 

Marx  V.  Tailer 853 

Marx  V.  Jones 920 

Mason,  Matter  of 1092,  1101 

Mason  v.  Prendergast 879 

Massa  v.  Cutting 903 

Maston  v.  Ammerman 740 

Mather  v.  Freelove 846 

Matteson  v.  Hall 1420 

Mather  v.  Parsons 857 

Matthews,  Matter  of..  1032,  1122,  1132 
Matthews  v.   Associated  Press  of 

N.  Y 904 

Mattice  v.  Wilcox 814 

Maxwell  v.  Gerard 799 

Maxwell  v.  Maxwell 700 

May,  Matter  of. 1222 

May  V.  Burras 900 

Mayor,  etc.,  of  N.  Y.  v.  Brady..   857 
Mayor,  etc.,  of  New  Tork  v.  Sec- 
ond Ave.  R.  Co 879 

Mead  v.  Miller 1209 

Mead  v.  Stratton 741 

Meo  V.  Meo 700 


Table  of  Cases  Cited. 


Ixxvii 


Mercer  V.  Mercer 700,  1059 

Merritt  v.  Fowler 855 

Merritt  v.  Sparling 1059 

Merrill  V.  Allin 1181,  1187 

Merris  v.  Hunt 1420 

Merritt,  Matter  of 1213 

Merritt  v.  Jackson 1214,  1323 

Merritt  v.  Judd 1181 

Merry  v.  Wilcox 1203 

Metcalf  V.  Del  Valle 1203 

Metcalfe,  Estate  of 1323 

Metiiodist  Book  Concern  &  Co.  v. 

Hudson 1180 

Metroiiolitan     Elevated    R.    Co., 

Matter  of 1441 

Meyer  v.  Dreyspring 1075 

Meyers  V.  Becker 841 

Meyers  V.  Herbert 1191,  1199 

Michaels  v.  Hains 848 

Michenfelder  v.  Gunther 1032 

Miller  v.  Richardson 893 

Mills  v.Hildreth 995,  1015 

Mills  V.  Hoffman 1220,  1222 

Milsheimer  v.  Sullivan 820 

Miner,  Matter  of 1221,  1230 

Mitchell  V.  Dick 1444 

Mock  V.  Saile 1381 

Moench  V.  Yung 1035 

Moffat  V.  Herman 1059,  1075 

Moffett  V.  Sackett 875,  877 

Mohar  v.  Simmons 827 

Moller  V.  Moller 689 

Molloy  V.  Long  Island  R.  Co 827 

Monell,  Matter  of. 1216 

Monroe,  Matter  of , 1323 

Montgomery  v.  Odell 1444 

Moore,  Matter  of 1209 

Moore  V.  Duffy 1202,  1203 

Moore  V.  Francis 813 

Moore  v.  Prentiss  Tool  &  Supply 

Co 846 

Moore  v.  Taylor 1203 

Moore  v.  Trimmer 1420 

Moore  v.  "Williams 879 

Moot  V.  Moot 672 

Morehead  v.  Brown 1409 

Morehouse  v.  Morehouse 1158 

Morehouse  v.  Second  Nat.  Bank.  896 

Morey,  Estate  of 727 

Morey  v.  Morning  Journal  Asso..  814 


Morgan,  Matter  of 1221 

Morgan  v.  N.  Y.  Central,  etc.,  R. 

Co   825 

Morgan  v.  Powers 825 

Moriarty  v.  Moriarty 700 

Morley  v.  Mayor  of  N.  Y 934 

Morris,  Matter  of 1075 

Morrow  V.  Freeman  995 

Mortimer  v.  Chambers 729 

Morton  v.  Palmer 855,  857 

Moulton,  Matter  of 1222,  1284 

Moynahan  v.  "Wheeler 820 

Mullen  V.  Christian 890 

Muller,  Matter  of. 1075 

Muller  V.  Muller 672 

Munson  v.  Curtis    1424 

Munson  V.  Munson 689 

Murphy  v.  Manhattan  Brass  Co. .  1444 

Murphy  V.  Philbrook 1005 

Murray  V.  Murray 694 

Myers  v.  Becker 1059 

Myers  v.  Dorman 901 

Myer  V.  Thomson 740 

Nassau  Electric  R.  Co.  v.  "White..  970 

Nassoiy  v.  Tomlinson 896 

Nathans  v.  Hope 1059 

Nat.  Bank  of  Republic  v.  Darrah. 

1142,  1150 
National  Broadway  Bank  v.Hitch.  919 
Nat.  Mechanics'  Banking  Ass'n  v. 

Usher 855 

National    Tradesmen's    Bank   v. 

Wetmore 738,  746 

Nealon  v.  Frisbie 805 

Nearing  v.  Van  Fleet 821 

Nemetty  v.  Taylor 1032,  1043 

Nestor  v.  Bischoff 1441 

Nevitt    V.    First    Nat.    Bank    of 

Albany  

Ne wcombe  v.  Lottimer 722 

Newhall  v.  Appleton 1444 

Newhall  v.  Wyatt 879 

Newman  v.  Marshall 825 

Newman  v.  Stuckey 920 

N.  Y.  C.  &  -II.  R.  R.  Co.  V.  Maine.  912 
New  Yoik  Harbor  Towboat  Co. 

V.  N.  Y.,  Lake  Erie  &  W.  R.  Co.  790 
New  York  Lumber,  etc.,   Co.  v. 

Schneider 902,  1142,  ll.'J3 

N.  Y.  Oxygen  Co.,  Matter  of. ... .  1173 


Ixxviii 


Table  of  Cases  Cited. 


Nicholas  V.  McLean 934 

Nichols  V.  Place 1380 

Nicoll  V.Clark 709 

Nicoll  V.  Spowers 1203 

Niles,  Matter  of 1323 

Niver  v.  Crane 741 

Noel  V.  Kinney 893 

Nolan  V.  King 786 

Norcross  v.  HoUing-sworth  768 

North  River  Construction  Co.  v. 

Taussig 848 

Norton  v.  Dowling 978 

Norwood  v.  Ray  Mfg.  Co 1059 

Nottingham,  Matter  of 970 

Noye  Co.  v.  Raymond 709 

Nugent  v.  Keenan 1441,  1444 

Oakley  V.Lamb 1312 

Ober  V.  Ober 700 

O'Brien,  Matter  of ....  1220,  1222,  1276 

1333 

O'Brien  v.  Fei-guson 853 

O'Connell  v.  Samuel 825 

O'Connor  V.  Conzen 890 

O'Connor  V.  Hiiggins..l210,  1284,  1344 
O'Connor  v.  Mechanics'  Bank ....  1187 

1203 

Odell,  Matter  of 1059,  1314,  1353 

O'Donnell  v.  Mclntyre 825,  1040 

Oelberman  v.  New  York  &  North- 
ern R.  R.  Co 764 

O'Flynn  v.  Powers 729,  731 

O'Halon  V.  Scott 919 

O'Keefe  V.  O'Keefe 694 

Olney  v.  Baird 1172 

O'Loughlin  v.  Hammond  &  Co ... .  1441 

Olp  V.  Loddick 911 

Oneida  County  Bank  v.  Bonney. .   919 
O'Neill  V.  N.  Y.,  Ontario,  etc.,  R. 

Co 788 

Oppenheimer  v.  Manhattan  R.  Co.  823 

828 
Oregon  Pac.  R.  R.  Co.  v.  De  Forest.  894 

O'Reilly  v.  Block 1414,  1420 

O'Reilly   v.    Utah,   Nev.    &    Col. 

Stage  Co 783 

O'Rourke  v.  Piatt 891 

O'Shaughnessy  v.  Morning  Journal 

Ass'n 814 

Ostrander  v.  Hart 1158 

Otis  V.  Crouch 879 


Ottinger  v.  Prince 103^ 

Owens,  Matter  of 1111,  1246 

Page  v.  Larrowe 1420 

Palen  v.  N.  Y.,  New  Haven,  etc., 

R.  Co 777 

Palmateer,  Matter  of 1221 

Palmer  v.  Bennett T  . . . .   814 

Palmer  v.  Colville 1203 

Palmer  v.  Jones 853 

Parfitt  V.  Kings  Co.  Gas,  etc.,  Co.  912 

Parks  V.  Gilligan 823 

Parks  V.  Murray 740 

Paster  v.  Regan 823 

Paton,  Matter  of 1021,  1318 

Patterson,  Matter  of. 1274,  1323 

Patterson  v.  Hare 764,  766 

Pearce  v.  Neater 1380 

Pearsall,  In  re 1221 

Pearson  v.  Germond 1032,  1046 

Peaslee,  Matter  of. 1318 

Peck  V.  Baldwin 1181,  1183,  1187 

Peck  V.  Belknap 911 

Peck  V.  Hayes 1380 

Peck  V.  Peck 684 

Peer  v.  O'Leary 1032,  1041,  1047 

Penoyer  v.  Brown 1032 

Pennoyer  v.  Phillijia 1399 

People  ex  rel.  Western  N.  Y.  &  P. 

R.  Co.  v.  Adams   992 

People  ex  rel.  Ryan  v.  Aldridge..  970 
People  ex  rel.  Wood  v.  Assessors, 

etc.,  of  Taxes  of  Brooklyn 970 

People  ex  rel.  Slatzkata  v.  Baker.  954 
People  ex  rel.  Trainor  v.  Baker..   954 
People  ex  rel.  Edison  Electric  Il- 
luminating Co.  V.  Barker 992 

People  ex  rel.  Equitable  Gas  Light 

Co.  V.  Barker 992 

People  ex  rel.  Gould  v.  Barker...   992 
People  ex  rel.  Hecker,  etc.,  Min- 
ing Co.  V.  Barker   993 

People  ex  rel.  Schaeffler  v.  Barker.  992 
People  ex  rel.  Smith  v.  Barrett...  931 
People  ex  rel.   Cecil  v.  Bellevue 

Hospital  Med.  College 970 

People  ex  rel.  Howard  v.  Boswick.  978 

People  V.  Bouchard 1059 

People  V.  Briggs 777 

People  ex  rel.  Stimson  v.  Board 
of  Education  of  New  York 970 


Table  of  Cases  Cited. 


Ixxix 


People  ex  rel.  Kent  v.  Board  of 

Fire  Commissioners 992 

People  ex  rel.  Copcutt  v.    Board 

of  Health  of  Yonkers 992 

People  ex  rel.  McMackin  v.  Board 

of  Police  of  N.  Y 970 

People  ex  rel.  Piatt  v.  Board  of 

State  Canvassers    976 

People  ex  rel.  Supervisors  Chen- 
ango v.  Board  of  State  Assessors  992 
People  ex  rel.  Keene  v.  Board  of 

Supervisors  of  Queens  Co 975 

People   V.   Broadway   R.    Co.    of 

Brooklyn 926 

People  ex  rel.  MuUin  v.  Brother- 
hood of  Engineers 974 

People  ex  rel.  Brush  v.  Brown.  960,  965 
People  ex  rel.  Duffus  v.  Brown  1059 

1076 
People  ex  rel.  Lewis  v.  Brush  970,  972 

People  v.  Burdick 1158 

People  ex  rel.  Forest  Commision 

V.  Campbell 992 

People  ex  rel.  Russell  v.  Canvass- 
ers of  Albany 970 

People  ex  rel.   "Wemple  v.   Can- 
vassers of  Albany 978 

People  ex  rel.  Hasbrouck  v.  Can- 
vassers of  Dutchess  Co 972 

People  ex  rel.  Bush  v.  Canvassers 

of  Ulster  Co 972 

People  ex  rel.  Brown  v.  Carpenter  953 

People  ex  rel.  Lent  v.  Carr 1206 

People  ex  rel.  Lardner  v.  Car- 
son       914,  928 

People  V.  Carter 960 

People  ex  rel.  Lane  v.  Case 970 

People  ex  rel.  Van  Heck  v.  Cath- 
olic Protectoi*y    953 

People  ex  rel.  Eq.  Life  Ins.  Soc. 

of  U.  S.  v.  Chapin d70 

People  ex  rel.  Millard  v.  Chapin  970 
People  ex  rel.  Ostrander  v.  Chapin  970 
People  ex  rel.  Eckerson  v.  Christie  992 
Paople  ex  rel.  George  E.  Matthews 

Co.  v.  City  of  Buffalo 970 

People  ex  rel.  Ranton  v.  City  of 

Syracuse   970 

People  ex  rel.  Clarke  v.  Clarke..  953 
People  V.  Coggeshall 946 


People  ex  rel.  "Winchester  v.  Cole- 
man        904 

People  ex  rel.  Egan  v.  Columbia 

Club  974 

People  ex  rel.  Blakeslee  v.  Com- 
missioners of  Land  Office 992 

People  ex  rel.  Am.  Bible  Society 

V.  Commissioners  of  taxes 970 

People  ex  rel.  Panama  R.  Co.  v. 

Comm'rs  of  Taxes  of  N.  Y 992 

People  ex  rel.  Burby  v.  Common 

Council  of  Aubuin 992 

People  ex  rel.  Reynolds  v.  Com- 
mon Council  of  City  of  Buffalo  970 
People  ex  rel.  Moissen  v.  County 

Court  of  Kings 978 

People  ex  rel.  Barnes  v.  Court  of 

Sessions 992 

People  V.  Cowan  1183 

People  ex  rel.  Daniels  v.  Craw- 
ford   972 

People    ex    rel.     Huntington     v. 

Crennan 970 

People  ex  rel.  Woods  v.  Crissey . .   970 

People  ex  rel.  Boltzer  v.  Daly 970 

People  ex  rel.  Jones  v.  Davidson. .  1075 
People  ex  rel.  Tully  v.  Davidson  841 
People  ex  rel.   Fiske  v.   Dever- 

mann 976 

People  ex  rel.  Mount  Magadalen 

School  V.  Dickson 970 

People  ex  rel.  Lower  v.  Donovan  972 
People  ex  rel.  Ranton  v.  Doyle  . .  976 
People  ex  rel.  Roosevelt  v.  Edson  1059 
People   V.  Ecj.  Mutual  Fire  Ins. 

Company 711 

People  ex  rel.  Ketcham  v.  Excise 

Comm'rsof  N.  Y 974 

People  ex  rel.  Eldridge   v.  Fan- 

cher   1015 

People    ex    rel.    Dievot    v.    Fire 

Comm'rs  of  N.Y 992 

People    ex     rel.    Kent     v.     Fire 

Comm'rs   992 

People   ex  .rel.    Russell   v.    Fire 

Comm'rs  of  Saratoga  Springs. 
People  ex  rel.  Keteltas  v.  Fitch. 
People  ex  rel.  Purdy  v.  Fitch. . 


People  ex  rel.  Le  Roy  v..  Foley.. 


992 
970 
970 
972 
931 


Ixxx 


Table  of  Cases  Cited. 


People  ex  rel.  Taylor  v.  Forbes..  992 

1059 
People  ex  rel.  Gibson  v.  French,  992 
People  ex  rel.    Navagh  v.  Frink,  960 

965 
People    ex    rel.    Society  for  the 
Prevention  of  Cruelty  to  Chil- 
dren v.  Gilmore 953 

People  ex  rel.  Davidson  v.  Gilon,  992 
People  ex  rel.  Heiser  v.  Gilon. . .  992 
People  ex  rel.  Dinsmore  v.  Gilroy,  970 
People  ex  rel.  Uhrie  v.  Gilroy. . .  974 
People  ex  rel.  Wren  v.  Goetting,  934 
People  ex  rel.  Baldwin  v.  Gold- 

fogle 978,  1032, 1046,  1397 

People  ex  rel.  Borst  v.  Grant. . . .  1075 

1077 

People  ex  rel.  Clark  v.  Grant ....    954 

1063,  1077 

People  ex  rel.  Higgins  v.  Grant..  992 

People  ex  rel.  Smith  v.  Grogan..   978 

People  V.Hall 1416 

People  ex  rel.  Wechsler  v.  Hark- 

ness 992 

People  ex  rel.  Cushman  v.  Hed- 

don 992 

People  ex  rel.  Cook  v.  Hildreth..  992 
People  ex  rel.  Hess  v.  Hinman. . .   848 

978 
People  ex  rel.  Salisbury  v.  Hol- 

comb 931 

People  ex  rel.  Jones    v.    N.    Y. 
Homoeopathic  Medical  College 

and  Hospital 970 

People  ex  rel.  Mclntyre  v.  Hurl- 
but 969 

People  ex  rel.  Grunwald  v.  Ind. 

Order  Ahavas  Israel 970 

People  ex  rel.  Durant  Land  Imp. 

Co.  V.  Jeroloman 1055 

People  ex  rel.  Miller  v.  Justices 

of  Sessions 970 

People  ex  rel.  Walkill  Valley  R. 

Co.   v.  Keator 992 

People     ex    rel.     Henry    Prouse 

Cooper  Co.  v.  Kelly 978 

People  ex  rel.  Cornell  v.  Knox..  926 
People  ex  rel.  Taylor  v.  Lehman.  1059 
People  ex  rel.  Evans  v.  Letson..  978 
People  ex  rel.   Paddock  v.  Lewis  992 


People  V.  Lewis 1059 

People  ex  rel.  White  v.  Loomis. .  1047 
People  ex  rel.  Stevens  v.  Lott. . . .  970 
People  ex  rel.  Mayor,  etc.,  of  N. 

Y.  V.  McCarthy 992 

People  ex  rel.  Evans  v.  McEwan  954 
People  ex  rel.  Goetcbius  v.  Mc- 

Goldrick 970,  1183 

People  ex   rel.  Andrews  v.  Mc- 

Guire 974 

People  ex  rel.  Gaynor  v.  McKane.1059 
People  ex  rel.  Schwager  v.  Mc- 
Lean  972 

People  ex  rel.  Wooster  v.  Maher. .  970 
People  ex  rel.  Keller  v.  Many. . .  992 
People  ex  rel.  Goodwin  v.  Martin..  992 
People  ex  rel.  Press  Pub.  Co.  v. 

Martin 992 

People  ex  rel.   Meyer  v.  Masonic 

Guild,  etc 1075 

People  ex  rel.  Toy  v.  Mayer 978 

People  ex  rel.  Kellner  v.  Mayor, 

etc.,  ofN.  Y 970 

People  ex  rel.  Ready  v.  Mayor  of 

Syracuse 970 

People  ex  rel.   Third  Avenue  R. 

Co.  V.  Newton 970 

People  V.  Remington  &  Sons  ....  1172 
People  V.  Seneca  Lake  Grape  and 

Wine  Co 1172 

People  ex  rel.  Sherwin  v.  Mead..  954 
People  ex  rel.  Welling  v.  Meakim.  970 
People  ex  rel.  Wilson  v.  Medical 

Society  of  Dutchess  Co 992 

People  ex  rel.  Baldwin  v.  Miller. .  1059 

1075 
People  ex  rel.  Bennett  v.  Miller..  970 
People  ex  rel.  Allen  v.  Murray..  .1045 

1046 

People  v.  Myers 970 

People  ex  rel.   Union  Ins.  Co.  v. 

Nash 970,  1142,  1153 

People  ex  rel.   Clason  v.  Nassau 

Ferry  Co 970 

People  V.  N.  Y.  Central,   etc.,  R. 

Co 972,  975 

People  ex  rel.  Nicholl  v.  N.  Y. 

Infant  Asylum 970 

People  V.   N.  Y.  L.  E.,  etc.,    R. 

Co 970,975 


Table  of  Cases  Cited. 


Ixxxi 


People  ex  rel.  O'SuUivan  v.  New 

York  Law  School 972 

People     ex    rel.     Swinburne     v. 

Nolan 926,  934 

People  ex  rel.  Robinson  v.  O'Keefe  970 

People  V.  O'Neill 778 

People  ex  rel.  Neptaniel  v.  Order 

of  The  American  Star 974 

People  ex  rel.  Hoyle  v.  Osborne . .  951 
People  ex  i-el.  Dreicer  v.   Ouder- 

kirk 974,  992 

People  ex  rel.  Dexter  v.  Palmer. .  992 
People  ex  rel.  Weed-Parsons  Co. 

V.  Palmer.. 970 

People  ex  rel.  Parr  v.  Parr 953 

People  ex  rel.  Oakley  v.  Petty. . .  978 

People  V.  Piatt 926 

People  ex  rel.  Flanagan  v.  Police 

Comm'rsofN.  Y.. 992 

People  ex  rel.  Oppenheimer  Pub., 

etc.,  Co.  V.  Pople 992 

People  ex  rel.  Slaight  v.   Potter.. .1059 

People  ex  rel.  Best  v.  Preston 972 

People  ex  rel.  Fairchild  v.  Preston  970 
People  ex  rel.  Danziger  v.   P.   E. 

House  of  Mercy 953 

People   ex  rel.   Cooper  v.  Regis- 
trar of  Arrears 970 

People    ex   rel.    Title    Guaranty, 

etc.,  Co.  V.  Reilly 970 

People  ex  rel.  Daley  v.  Rice 970 

People  ex  rel.  Piatt  v.  Rice 1059 

People  ex  rel.  Steitz  v.  Rice 1059 

People  ex  rel.  Morgan  v.  Rollins.. 1220 
People  ex  rel.   Fargo  v.    Rosen- 
dale 970 

People  ex  rel.  Woodward  v.  Rosen- 
dale 970 

People  ex  rel.  Hoffman  v.  Rupp..  970 
People  ex  rel.  Smith  v.  Schiellein  970 
People  ex  rel.  Kings  Co.  Gas  and 

Illuminating  Co.  v.  Schieren. . .  970 
People  ex  rel.  Peck  v.  Schwartz..  953 

People  ex  rel.  Kelly  v.  Scott 992 

People  ex  rel.  Taylor  v  Seaman..  992 
People  V.  Seneca  Lake  Grape  and 

Wine  Co 1174 

People  V.  Sharp 1063 

People  ex  rel.   Pickard  v.   Sheriff 
of  Chautauqua 953 


People  ex  rel.  O'Conner  v.  Sickles.. 1075 
People  ex  rel.  Perkerson  v.  Sisters 

of  St.  Dominick 953 

People  ex  rel.  Slater  v.  Smith 970 

People  ex  rel.  Bates  v.  Speed 975 

People  ex  rel.  Piatt  v.  State  Board 
of  Canvassers 1059 

People  ex  rel.  Sherwood  v.  State 
Board  of  Canvassers 970 

People  ex  rel.  Young  v.  Stout..  953 

969 

People  ex  rel.  Dady  v.  Supervi- 
sors of  Brookl  jTi 970 

People  ex  rel.  O'Mara  v.  Supervi- 
sors of  Cayuga 970 

People  ex  rel.  Hasbrouck  v.  Sup- 
ervisors of  Dutchess 970,  972 

People  ex  rel.  Crounse  v.  Super- 
visors of  Fulton 970 

People  ex  rel.  Hall  v.  Supervisors 
of  Greene ., 97a 

People  ex  rel.  Rumph  v.  Supervi- 
sors of  Kings  Co 970 

People  ex  rel.  Pond  v.  Supervisors 
of  Monroe 970 

People  ex  rel.  City  of  Lockport  v. 
Supervisors  of  Niagara 970 

People  ex  rel.  Keene  v.  Supervi- 
sors of  Queens  Co 970 

People  ex  rel.  Trustees  of  Jamaica 
V.  Supervisors  of  Queens 992 

People  ex  rel.  Gaylord  v.  Super- 
visors of  Schoharie 974 

People  ex  rel.  Humphrey  v.  Su- 
pervisors of  Ulster 970 

People  ex  rel.  Everett  v.  Supervi- 
sors of  Ulster 970 

People  ex  rel.  James  v.  Surrogate 
of  Putnam 978 

People  ex  rel.  Kenyon  v.  Suther- 
land    995 

People  ex  rel.  Drake  v.  Sutton. . .   970 

People  ex  rel.  Salke  v.  Tulcott  . . .   978 

People  ex  rel.  Pond  v.  Tamsen...  1059 

1076 

People  ex  rel.  Com.  Mut.  Ins.  Co. 
v.  Tax  Comm'i-8 992 

People  ex  rel.   Hoffman  v.  Ted- 
castle 970.  972 

People  ex  rel.  Hanford  v.  Thayer.  992 


Ixxxii 


Table  of  Cases  Cited. 


People  ex  rel.  Dowdney  v.  Thomp- 
son      970 

People     ex     rel.     Stranahan     v. 

Thompson 970 

People  ex  rel.  Read  v.  Town  Au- 
ditors     970 

People  ex  rel.  Howes  v.  Tracy. . .  970 
People  ex  rel.  Wilson  v.  Trustees 

of  Mt.  Vernon 970 

People  ex  rel.   Cauffman  v.  Van 

Buren 1075 

People  ex  rel.  Stanley  v.  Van  Sic- 

len 970 

People  ex  rel.  Spencer  v.  Village 

of  New  Rochelle 992 

People  ex  rel.  Lockwood  v.  Village 

of  Saratoga  Springs 970 

People  ex  rel.  Goring  v.  President,     • 
etc.,  of  Village  of  "Wappingers 

Falls 970 

People  ex  rel.  Mooney  v.  Walsh.,  954 
People  ex  rel.  Martin  v.  Walters.  953 
People  ex  rel.  Pruyne  v.  Walts. . .  953 
People  ex  rel.  McCoy  v.  Warden 

of  City  Prison 953 

People  ex  rel.  Frey  v.  Warden  of 

N.  Y.  County  Jail 953 

People  ex  rel.  Albany  &  Green- 
bush  Bridge  Co.  v.  Weaver 992 

People  ex  rel.  Gunn  v.  Webster..  953 
People  ex  rel.  Cochrane  v.  Wells.  970 
People  ex  rel.   Am.  Contracting, 

etc.,  Co.  V.  Wemple 992 

People  ex  rel.  Brush  Electric  Mfg. 

Co.  V.  Wemple 992 

People  ex  rel.  Ballou  v.  Wendell.  970 
People  ex  rel.  Canady  v.  Williams.  992 
People  ex  rel.  Wyatt  v.  Williams.  992 
People  ex  rel.  McLoughlin  v.  Wil- 
son      953 

People  ex  rel.  Nostrand  v.  Wilson.  970 

People  V.  Wood 946 

People  ex  rel.  O'Brien  v.  Wood- 
worth 953 

Percival  V.  Percival 700 

Perkins,  Matter  of 1323 

Perkins  V.  Slocum 846 

Perry  v.  Perry 734 

Perry  v.  Sutley 823 

Peters  v.  Carr 727 


Perkins,  Matter  of. 1323 

Pettee  V.  Pettee  700 

Pettibone  v.  Drakeford 1203 

Peyser  v.  Halsted 741 

Peyser  v.  Wendt 727 

Peyser  v.  Wilcox 879 

Pfandler  Barm  Extracting  Co.  v. 

Sargent 1441 

Phalen,  Matter  of. 1209 

Phelps  V.  Phelps 1212 

Phillips  V.  McNab 846 

Phillips  V.  Wortendyke 836 

Pickard  v.  Simpson 873 

Pierano  v.  Merritt 1420,  1425 

Pierce,etc.,Mfg.  Co.  v.  Bleckwenn.  974 

Pierson  v.  Cronk 766 

Pierson  v.  McCurdy  870 

Pitt  V.  Amend 1161 

Pittsfield  Nat.  Bank  v.  Taller  . . .  1059 

Pittman  v.  Johnson 722 

Place  V.  Hay  ward 879 

Piatt  V.  Jones —    741 

Platz    V.    Burton   &   Corey,    etc.. 

Cider  Co 1420 

Plumb,  Matter  of 1221,  1288,  1371 

Plumb,  In  re 1246 

Poen  V.  Scott 1420 

Pope  V.  Negus 849 

Pojifinger  V.  Yutte 740 

PopoflF,  Matter  of 970 

Porter,  Matter  of 1210 

Porter  v.  Dunn 893 

Porter  v.  Industrial   Information 

Co 711,  720 

Posson  V.  Dean 1032 

Potter  V.  Greene 894 

Potter  V.  Ogden 1210,  1215 

Potts  V.  Davidson 1181 

Pountney  v.  Pountney 700 

Prentiss  v.  Bowden 727,  738 

Pieston  V.  Hawley 878 

Price  V.  Fenn 1209 

Prince  Mfg.  Co.  v.  Prince  Metal- 
lic Paint  Co 1059 

Pritsch  V.  Schlict 849 

Prout,  In  re 1222 

Prout  V.  Chisholm 879 

Prussia  v.  Guenther 778,  1408 

Pruyn  v.  Lynch 1424 

Purcell  v.  Long  Island  City 828 


Table  of  Cases  Cited. 


Ixxxiii 


Putnam  v.  Anthony 1198 

Putnam  v.  Van  Allen 1412 

Putnam  v.Wigg 820 

Putzel  V.  Schulhoff 741 

Pyne  V.  Nat.  Steamship  Co 1441 

Quackenbush  v.  O'Hare 1166 

Queens  Co.  Bank  v.  Leavitt 893 

Quigley  v.  Quigley 1075 

Quilty  V.  Battle  820 

Quinn  v.  Power 7S2 

Rainey,  Matter  of. 1203 

Ramsay  v.  Robinson 1380 

Rathburn  v.  Weber 1046 

Raven  v.  Norton 1336 

Read  V.  Patterson 729 

Reck  V.  Phenix  Ins.  Co 1444 

Reddin  v.  Lawlor 846 

Redford  v.  Snow 1399 

Reed  v.  Lozier 729 

Reich  V.  Cochrane 1047 

Reichel  v.  N.    Y.    Central,   etc., 

R.  Co 1441 

Reid  V.  Diefendorf 1420 

Reid  V.  Terwilliger 890 

Reilly  v.  Dodge 768 

Reinhardt  V.  Fritzche 891 

Remsen  v.  Wheeler 879 

Rennie  v.  Ryder 805 

Renwick  v.  N.  Y.  Central  R.  Co..  1444 
Republic  of  Honduras  v.  Soto ....  1444 

1445 

Reynolds  v.  Lawton 878 

Reynolds  v.  Parkes 1059 

Reynolds  v.  Swick 1420 

Rhodes  v.  Carr 1420,  1425 

Rhodes  v.  Linderman 1059 

Richards  V.  Littell 878 

Richards  v.  Ludington 853 

Richardson  v.  Case 919 

Richardson  v.  Levi 1420 

Richards  v.  Pitts  Ag.  Works 846 

Rich  V.  Markham 1413 

Rickey  v.  Christie 1380 

Rider  V.  Rulison 814 

Ridgway  v.  Symons 1444 

Rigney  v.  Rigney 689 

Riley  v.  Riley 672 

Riley  v.  Skidmore 1386 

Rinelander  V.  Dunham 1199 

Risilon  V.  De  La  Rua 879 


Ritter  v.  Devine 1158 

Robarge  v.  Central  Vermont  R.  R. 

Co 736 

Robbins  v.  Downey.. , 878 

Robbins  v.  Robbins 828 

Roberts  v.  EUwood 879 

Roberts   v.  Ely 879 

Roberts  v.  Ogdensburg  &  Lake 

Champlain  R.  Cc 689 

Robertson  v.  Hay,  Matter  of.....  1191 

Robinson  v.  Gilroy 912 

Rochester,  etc.,    R.  Co.  v.  N.  Y., 

Lake  Erie,  etc.,  R.  Co 1059 

Rodgers  v.  Adriatic  Fire  Ins.  Co. .  1172 

Roe  V.  Doe 821 

Rogers  v.  Earle 1046 

Rogers  v.  Edmonds 1380,  1412 

Rogers  v.  Patterson  ....  729,  731,  732 

Rogers  v.  Rogers  820 

Roldan  v.  Power  879 

Romaine  v.  Chauncey 696,  741 

Rosenberg  v.  Block  879 

Rosenfield  v.  New 896 

Rosen  v.  Stein 823 

Ross  V.  Butler 1059 

Ross  V.  Wigg  996 

Rothmiller  v.  Stein 836 

Rothschild  v.  Rio  Grande  Western 

R.  Co 736 

Rothschild  v.  Wilson 1444,  1445 

Rouse  v.  Catskill  and  N.  Y.  Steam- 
boat Co 890 

Rowe  V.  Lent 797 

Royce  v.  Gibbons 1420 

Royer  Wheel  Co.  v.  Fielding 741 

Rublinsky  v.  Rublinsky 700 

Rude  V.  Crandall  1396 

Rudolph  v.  Rudolph  ....700,  707,  778 

Rueer,  Matter  of 1257 

Russell  V.  McCall 846 

Rutherford,  Matter  of 1350 

Rutherford  v.  Town  of  Madrid  . .  1444 

Ryan,  Matter,  of 970 

Ryckman,  Matter,  of —  1077 

Ryckman  v.  Ryckman  ....   708,  1059 

Ryder  v.  Wood 1122,  1127 

Ryer   v.  Ryer 708 

Ryerson  V.   Kauffield 846 

Ryerson  v.  Ryerson 689 

Sadlier  v.  Riggs 878 


Ixxxiv 


Table  of  Cases  Cited. 


SaflFord  v.  Safford . .  668,  679 

St.  Stephen's  Church  Cases  926,  970 

Sales  V.  Hoetze  .1 828 

Samson  v.  Freedman 878 

Sander  v.  Harris 848 

Sanders  V.  Euling 904 

Saniiford  v.  Sandford...l059, 1060, 1063 

Sandford,  Matter  of 1092,  1101 

Sanford  v.  Sanford 696,  700 

Sands  v.  Sparling 893 

Re  Santa  Eiilalia  Silver  Min.  Co., 1172 

Sargent  v.  Warren 1441 

Saw  Mill  Co.  V.  Dock 1213 

Sawyer  v.  Bennett Bl4 

Sawyer  V.  Greener 894 

Sayles  v.  Best 1201 

Schaeffer  v.  Soule 995 

Schaffer  v.  Riseley 1015 

Schenck  v.  Erwin.. 1181,  1187 

Schillinger  Fire  Proof  Cement  Co. 

V.   Arnott 666 

Schmidt  v.  Eiseman 1444 

Schneider  V.  Leizman 1041 

Schosner  V.  Lissauer 894 

Schmitz  V.  Langhaar 727 

Schofield  v.  Kreiser    848 

Scotield  V.  Adriance 1333 

Schopen  V.  Ramson 797 

Schorn  v.  Berry 815 

Schultz  V.  Cookingham 722 

Schumaker  v.  Mather 837 

Schuyler's  Steam  Tow  Boat  Co., 

Matter  of 718,  1172 

Schwager,  Matter  of 975 

Schwartz  v.  Scott 1444 

Schwartz  v.  "Wheeler 904 

Schwenk  v.  Naylor 836 

Scott  V.  Parker 722 

Scoville  V.  Halliday 740 

Scragg  V.  Scragg 700 

Scudder  v.  Burrows 894 

Seabra,  Matter  of.. ..  1209,  1215,  1323 

Seagrist,  Matter  of , 1221 

Sears  v.  Sears 707,  778 

Seasongood  v.  N.  Y.  Elevated  R. 

Co  1441 

Sebring  v.  Stryker 848 

Second  Nat.  Bank  of  Oswego  v. 

Dunn 1059 

Secor  v.  Clark 894 


Secor  V.  Pendleton 666,  722 

Seeley  v.  Bisgrove 1410 

Serven  v.  Lowerre 1195,  1198 

Seton  V.  Clark 878 

Sexton,  Matter  of 1333 

Seybolt  v.  N.  Y.  L.  E.  and  "W. 

R.    Co 782 

Shaffer  v.  Riseley 1021 

Sharp  V.  Whitmore 1444 

Shaver  v.  Eldred 1435,  1441 

Shaw  v.  McCarthy 1032 

Shaw  V.  McCarty  1055 

Shaw  V.  Shaw 700 

Sheehan  v.  Bradford,  etc.,  R.  R. 

Company    849 

Sheehan  v.  Buller 1424 

Sheehan    v.   Treasurer    of   Long 

Island  City 970 

Sheffield  Farm  Co.  v.  Burr  1201,  1203 

Sheffield  v.  Hamlin   722 

Shehan  v.  Johnston 1380 

Shell  V.  Mnir 729 

Shepard  v.  Manhattan  R.  Co 722 

Sherman  v.  Green 1409, 1420,  1423 

Sherman  v.  Sherman 672 

Sherman  v.  Shbler  1381,  1425 

Shipman,  Matter  of   1323 

Shorer  v.  Times  Printing,  etc.,  Co.  709 
Shrump  v.  Parfitt....  1142,  1147,  1150 

Shufeltv.  Sweet 1397 

Sigel  V.  Sigel 700 

Silkman  v.  Crosby 827 

Simon,  Matter  of 953 

Simonds  V.  Simonds  700 

Simpson  v.  Masson   1401 

Simpson  v.  Rowan 1441 

Simpson  V.  Griggs 820 

Sims,  Matter  of. 1068 

Sims  V.  Bonner 1444 

Sippel  V.  Macklin 727 

Skinner  v.  Smith 1172 

Slattery  v.  Haskin 1420 

Smith,  Matter  of 1323 

Smith  V.  Bay  lis 1323 

Smith  V.  Britton 855 

Smith  v.  Crego 899 

Smith  v.  McMillan 1413 

Smith  v.  McQuade 1203 

Smith  v.  Matthews 814 

Smithv.Smith 689 


Table  of  Cases  Cited. 


Ixxxv 


Smith  V.  Tozer 1203 

Soule,  Matter  of. 1209,  1257 

Southard  v.  Becker 1425 

Southern    Tier     Masonic      Relief 

As3'n  V.  Laudenbach 1092,  1100 

Spelman  v.  Friedman    746 

Spencer  v.  Wait 855 

Sperling  v.  Isaacs 1034,  1043 

Spencer  V.  Popham 1323 

Spiehlerv.  Asiel 1059 

Spoor  V.  Cornell 778 

Sprague,  Matter  of 1220 

Sprague  v.  Gibson 828 

Squire  v.  Preston 912 

Staffortl,  Matter  of 1122 

Stafford  v.  Morning  Journal  Ass'n.  814 

Stahlv.  Stahl 700 

Stanfield,  Matter  of. 723 

Stanley,  Ex  parte 953 

Stanley  v.  Freckleton 1158 

Starkweather  v.  Starkweather. . .   700 

Starr  v.  Patterson   995,  997 

State  ex  rel.  Dewey  v.  Burdick..l038 

Stearna  &  Co.  v.  Eaton 1203 

Stearns  v.  Tew 912 

Steele  V.  Gunn. 1059 

Steinam  v.  Bell 1396 

Stephen's  Estate,  In  re 1209,  1214 

Stephen  v.  Ayers 878 

Stephens  V.  Page 1183 

Stephens  v.   Perrine 746,  1203 

Stern  V.  Meyer    1013 

Stevens  v.  Cheney 890 

Stevens  v.  Met.  Life  Ins.  Co 828 

Stevens  v.  N.  Y.  Elevated  R.  Co.. 1441 

Stevens  V.  Rodger 824 

Stevens  v.  Stevens 682,  1380 

Stevens  v.  Union  Trust  Co 857 

Stevenson,  Matter  of 1312 

Stevenson   v.    N.    Y.,  Lake  Erie, 

etc.,  R.  Co 1444 

Stewart,  Matter  of 1304 

Stewart,  Matter  of  Will  of...  1229,  1230 
Stewart  v.   Union  Mut.   Life  Ins. 

Co 882 

Stilwell,  Matter  of 1166 

Stilwell  v.  Carpenter 857 

Stilwell  V.  Swarthout..  1336,1342,  1344 

Btokes,  Estate  of 1333 

Stokes  V.  Arnmerman 741 


Stokes  V.  Dale 1333 

Stokes  V.  Stokes 814 

Stone  V.  Weiller 894 

Stout  V.  Smith 791 

Stover  V.  Chasse 1032,  1046 

Stow  V.  Chapin 740 

Stowell,  Matter  of. , . ,  1338 

Strang  v.  Peterson 894 

Straus  V.  Straus 694,  700 

Strauss  v.  Trotter 896 

Strawbridge  v.  Vandenburgh 1420 

Streahan  v.  Nat.  Steamship  Co . .   828 

Streever  v.  Birch 890 

Strong,  Matter  of 689 

Strough  V.  Supervisors  of  Jeffer- 
son      879 

Stuber  v.  McEntee 896 

Stubbs  V.  Ripley 1075,  1077 

Suau  V.  Gaffe 893 

Sugarman  v.  Manhattan  Elevated 

R.  Co 788 

Sullivan,  Matter  of 970 

Sullivan  V.  Newman 823 

Sullivan    v.    Remington    Sewing 

Machine  Co 1444 

Suydam  v.  Wood 1040 

Swart  V.  Rickard 823 

Swift  V.  Wheeler 1444 

Swigley  v.  Jones 1032 

Syracuse  Moulding  Co.  v.  Squires.  1380 

Taber  v.  Manhattan  R.  Co    1075 

Taber  v.  N.  Y.  Elevated  R.  Co..  1059 

Tacke's  will.  In  re 1333 

Tait  v.  Tait 672 

Talcott  v.  City  of  Buffalo 911 

Taylor,  Estate  of. 727 

Taylor,  Matter  of 953,  1059 

Taylor  v.  Fitch 768 

Taylor  v.  Taylor 694 

Teffts  v.  Eppstein 1181 

Terrell  v.  Strong 912 

The  Mart,  Matter  of 1172 

Thomas  v.  Jones     1396 

Thomas  v.  Keelei- 1380 

Thomas,  v.  Smith   805 

Thomas  v.  Snyder 1013 

Thompson  v.  Gray 836 

Thompson  V.  Mott 1216 

Thompson  v.  Sheridan  ....1380,  1423 
Thompson  v.  Vroman   846 


Ixxxvi 


Table  of  Cases  Cited. 


Thomson  v.  Tracy 977 

Thorn  v.  Roods 1420 

Thorn  v.  Garner 723 

Thorp  V.  Adams 848 

Thrall  V.  Thrall 700 

Tiffany  &  Co. ,  Matter  of 992 

Tilby  V.  Tilby 1220 

Tilden,  Matter  of 1274 

Tilden  v.  Dows 1215 

Todd  V.  Doremus 1380 

Todd  V.  Marsily 1444 

Todd  V.  Vaughan 879 

Tolles  V.  "Wood  740 

Tolman  v.  Syracuse,  B.  &  N.  Y. 

R.  R.  Co  1444 

Toomey  v.  Delaware,  L.  &  W.  R. 

Co  823,  828 

Torkinton,  Matter  of 1221 

Torney,  Matter  of. 970 

Tousley  V.  Mowers 1413 

Townley  v.  Fall  Brook  Coal  Co...  788 

Townsend  v.    Hopkins 778 

Townsend  V.  Stewart 825 

Townsend  v.  Tolhurst 1418 

Tracy  V.  Frost 1412 

Tra^nier,  In  re 1092 

Traud  v.  Magnes 729 

Travis,  Matter  of 1318 

Trebilcox  v.  McAlpine 857 

Tremaine  v.  Mortimer 746 

Trimble  v.  Kilgannon    1444 

Triplerv.  Mayor,  etc..  ofN.  Y..  879 

Turfier,  Matter  of 1324 

Turner  v.  Craighead 820 

Turton  v.  N.  Y.  Recorder  Co ... .    814 

Tuttlev.  Hazard 846 

Tyler,  Matter  of 1206 

Tyler  V.  Guy 837 

Uhlman  v.  Uhlman 700 

Underhiil,  Matter  of 724,  1323 

Union  Bank  V.  Newman 897 

Union  Ins.  Co.  v.  Central  Trust 

Co 1142,  1153,  1155 

Union  Trust  Co.  v.  Gage 1063 

United  States  Mortgage  Company, 

Matter  of. 1167 

Upton  V.  Bernstein 1252 

Utica  Clothes  Dryer  Manuf.    Co. 

V.   Otis 919 

Utter  V.  Nelligan 1420 


Valentine  v.  Kelley 1410,  1423 

Van  Aernam  v.  Bleistein 904 

Van  Arsdale  v.  King 855 

Van  Benthuysen  v.  Van  Benthuy- 

sen 682 

Vanderpoel  v.  Gorman 748 

Vanderwerken  v.  Brown 1424 

Van  Dyck,  In  re 724 

Van  Etten  v.  Van  Etten 1397 

Van  Fleet  v.  N.  Y.  Central,  etc., 

R.  Co 788 

Van  Gelder  v.  Hallenbeck 1441 

Van  Houten  v.  Pye 846 

Van  Nostrand  v.  Walkill  R.  Co...   788 

Van  Schaick  v.  Koster 1055 

Van  Sinderen  v.  Lawrence 1350 

Van  Valkenburgh   v.   Lasher 1323 

Van  Vleck  v.  Enos 1161 

Van  Wormer  v.  Van  Wormer 700 

Varnum  v.  Wheeler   1441 

Vaughn  v.  Village  of  Port  Ches- 
ter     879,  894 

Velie  V.  Newark  City  Ins.  Co....    884 
Vermont  Marble  "Works  v.  Wilkes  1059 

1199 

Vernon  v.  Palmer 778 

Vernon  v.  Simmons 878 

Vestner  v.  Findlay 878,  879 

Viets  V.  Union  Nat.  Bk.  of  Troy. .  1092 

1101 
Village  of  Suspension  Bridge  v. 

Bedford 1380 

Vincent  v.  Vincent 684,  700 

Visscher  v.  Bogg 900 

Vogel  V.  Schlueter 1425 

Waldron  v.  Walker 1187 

Walford  v.  Harris 1059 

Wallace  v.  Hoexter 894 

WaU  V.  Bulger 724 

Walrath  v.  Abbott. . . .  1104,  1106,  1134 
Walsh  V.  Nat.  Broadway  Bank  . .   879 

Walsh  V.Walsh 700 

Ward  V.  Burgher 1032 

Ward  V.  Deane 805,813 

V^ard  V.  Petiie 1203 

Ward  V.  Town  of  Southfield 857 

Waring,  Matter  of. 707,  727 

Warner  v.  Jaffray 748 

Warner  V.  Press  Publishing  Co. .   805 
Warren  v.  Chase 1441 


Table  of  Cases  Cited. 


Ixxxvii 


Warren  v.  Dennett 823 

Warring  v.  Keeler ... , 1378 

Washbon  V.  Cope 1323 

Washburn,   Matter   of.....  1209,1210 

1213 

Washburn  v.  Catlin 689 

Washburn  v.  Cope 1246 

Wassinger  v.  Fennell 1444 

Wass  V.  Stevens 827 

Watson  V.  Benz 1425 

Watson  V.  King 722 

Watson  V.  Oswego  Street  R.  Co..  825 

Weaver  v.  Brydges 1191 

Weaver  v.  Haviland 738,  746 

Webber  v.  Herkimer  &  Mohawk 

Street  R.  Co 781 

Webber  v.  Hoag 820 

Webb  v.  Meyers 879 

Weber  v.  Bridgman 878 

Weeks  v.  Zimmerman 896 

Weidner  v.  Phillips 837 

Weinberg  v.  Nat.  Steamship  Co..  787 

Weinstockv.  Levison 1122,  1132 

Weisenbach  v.  Pokalski 1032 

Weiss  V.  Ashman 1183 

Wellman   v.    Sun   Printing,   etc., 

Asso 814 

Wells  V.  Henshaw 855 

Wells  V.  Monihan 904 

Wells  V.  World's  Dispensary  Med- 
ical Ass'n 797 

West  V.  City  of  Utica 912 

Weston  V.  City  of  Newburgh 970 

Wetmore  v.  King 722 

Wetmore  V.  Wetmore 700 

Wheeler,  Matter  of. 1222 

Wheeler  v.  Dakin 855 

Wheeler  v.  Emeleuth. . .  995,  997,  1013 
Wheeler   &  Wilson   Mfg.    Co.   v. 

McLaughlin 1380 

Wheeler  V.  Law=on 746 

Wheeler  v.  Oceanic  Steam  Nav. 

Co  787 

Wheelock  v.  Noonan 1075,  1077 

Whitehead,  Matter  of. 1323 

White  v.  Rasines 894 

White  v.  Matthews 1142 

White  v.  Read 857 

Whitman  V.  Bowe 878 

Whitman  v.  Haines 768,  1059 


Whitney  v.  N.  Y.  &  Atlantic  R. 

Co  711 

Whitney  V.  Roe 1441 

Whitney  v.  Whitney. .  1059,  1060,  1068 

Whittlesey  v.  Frantz 711 

Wicks  V.  Monihan 904 

Wilberly  v.  Matthews 1142 

Wilcox,  Matter  of 1225 

Wilcox's  Estate,  Matter  of  .• 996 

Wilcox  V.  Payne 74& 

Wilkes,  Matter  of. 1059 

Wilkins  V.  Mayor 912 

Willard  v.  Holmes  &  ors 828 

Willett,  Estate  of..  . 1333 

Willett,  Matter  of. 1441 

Williams,  Matter  of 1229,  1230 

Williams  v.  Williams 694,  700 

Willis  V.  Albertson 89a 

Wilson,  Matter  of. 1284 

Wilson  V.  Manhattan  R.  Co 82a 

Wmchester  v.  Brown 1444 

Winegard,  Matter  of 992 

Wing,  Matter  of 1091,  1304 

Winne  v.  Houghtaling 953,  1414 

Winner  v.  Lathrop 797 

Winslow,  Matter  of 1220,  1323 

Winton  v.  Winton 10.')9 

Wisner,  Matter  of 1216 

Witcher  V.  Jones 814 

Witham  v.  Thomas 828 

Witty  V.   Acton 1034 

Wolf  V.  Buttner 1068,  1075,  1199 

Wolfe  V.  Knight.. 1059,  1068, 1075,  1199 

Wolff  V.  Horn 1441 

Wolff  V.  Houston 1444 

Wood  V.  Blodgett 1444 

Wooden  v.  Western  N.  Y.   R.   R. 

Co 781,  782,  783 

Wood  v.  Excise  Commissioners....  1435 

Wood  v.  Kroll 1441 

Woodrick  v.  Woodrick 694 

Woodruff  v.  Bradstreet  Co 813 

Woods  V.  Ke man IOjIG 

Wood  V.  Wood 7()t) 

Wood  V.  Young 870 

Wren  v.  Goetting OTO 

Wrench  v.  Samenfeld 828 

Wright,  Mailer  of. 1046 

Wright  V.   Clapp H.')3 

Wright  V.  NoHtrand 1180 


Ixxxviii 


Table  of  Cases  Cited. 


Wright  V.  Reusens 1441 

Wright  V.  Wright 896 

Wyckoff  V.  Devlin 1444 

Wyckoff  V.  Frommer 1032,  1047 

Yale  V.  CurtisB 821 

Yerkesv.  McFadden 915 

Youker  v.  Treadwell 1158 

Youmans  v.  Paine 814 

Young  V.  Conklin . . . .  1399,  1420,  1423 

Young  V.  Gregg 778 

Young  V.  Lyall   827 


Young  V.  Staten  I.  R.  T.  R.  Co. . .   790 

Zahrt,  Matter  of 1346 

Zenner  v.  Blessing 841 

Zeph,  Matter  of  1083,  1284 

Ziegler  v.  Chapin  911 

Zimmer  v.  Bantel 848 

Zimmer  v.  N.    Y.    Central,  etc., 

R.  Co 787 

Zink  V.  Bohn 1032 

Ziporkes  v.  Chmelniker 894 

ZoUer  V.  Smith  1425 


addenda; 


Form  No.  761,  page  639,  insert  in  fifth  line,  after  word 
"is"  and  before  word  "entitled,"  the  word  "lawfully." 

Form  No.  334,  note  2,  page  244,  for  "  ed.  1861,  page 
96,"  read  "  ed.  1896,  page  61." 

Heading  of  page  622a  should  be  "other  real  actions" 
and  not  "  Action  for  nuisance." 


*  Please  note  opposite  the  fomis. 


FORMS  OF  CIVIL  PROCEDURE. 


CHAPTER  XV. 

FORMS  RELATING  TO  SPECIAL  PROVISIONS  OF  CHAPTER  FIF- 
,     TEEN  OF  THE  CODE  OF   CIVIL   PROCEDURE.   REGULATING 
PARTICULAR  ACTIONS  AND  RIGHTS  OF  ACTION  AND  AC- 
TIONS BY  AND  AGAINST  PARTICULAR  PARTIES. 

TITLE      I.  Forms  relating  to  matrimonial  actions. 

TITLE    II.  Forms  relating  to  actions  relating  to  corporations. 

TITLE  III.  Forms  relating  to  actions  relating  to  tlie  estate  of  a  decedent 

TITLE  IV.  Forms  relating  to  other  sj^ecial  actions  and  rights  of  action. 

TITLE    V.  FoiTQs  relating  to  other  actions  by  or  against  particular  partiefli 

TITLE  I. 

FORMS  RELATING  TO  MATRIMONIAL  ACTIONS. 

Article  First. 

FORMS  RELATING  TO  ACTIONS  TO  ANNUL  A  VOID  OR  VOIDA- 
BLE MARRIAGE. 

(Code  Civ.  Pro.,  Ch.  16,  Tit.  1,  Art.  1.) 

No.  790.     Complaint  in  action  by  woman  to  declare  marriage  contract  void, 
entered  into  by  her  when  under  age  of  fourteen  years. 

791.  Complaint  in  action  to  annul  a  marriage  contracted  by  party  under 

age  of  legal  consent. 

792.  Complaint  in  action  to  annul  marriage  on  the  ground  that  former 

husband  or  wife  was  livin"-. 

793.  Complaint  in  action  to  annul  marriage  of  idiot. 

794.  Complaint  by  lunatic  at  time  of  marriage  to  annul  marriage  after 

restoration  to  sound  mind. 

795.  Complaint  by  relative  of  lunatic  to  annul  marriage  on  the  ground  of 

lunacy. 

796.  Complaint  in  action  to  annul  marriage  on  the  ground  of  fraud  in 

obtaining  consent. 

797.  Complaint  in  action  to  annul  marriage  on  ground  of  physical  Inca- 

pacity. 

798.  AfBdavit  to  obtain  order  of  reference  in  suit  to  annul  marriage  on 

the  ground  of  non-age. 

799.  Affidavit  for  refcrcnfe  in  suit  to  annul  marriage  on  the  ground  that 

consent  was  obtained  by  force,  fraud  or  duress. 

800.  Affidavit  for  reference  in  suit  to  annul  marriage  on  ground  of 

lunacy. 

84 


666  FoKMs  Rela'hag  to 

No.  801.     Order  of  reference  in  action  to  annul  marriage. 

802.  Order  of  reference  in  action  to  dissolve  marriage  on  ground  of 

physical  incapacity. 

803.  Report  of  referee  in  action  to  annul  nuiniaga. 

804.  Final  judgment  in  action  to  annul  marriage  op  ground  of  non-age, 

lunacy  or  idiocy. 

805.  Petition  for  appointment  of  next  friend  for  infant,  idiot  or  kinatic 

806.  Order  appointing  next  friend  to  bring  such  action. 


No.  790. 

Complaint  in  Action  hy  Woman  to  Declare  Marriage  Con- 
tract Void,  Entered  into  by  her  wlien  under  Age  of  Four- 
teen Years. 

(Code  Civ.  Pro.,  §  1742.) 

[Title  of  cause.] 

The  complaint  of  the  above  named  plaintiff  respectfully 
shows : 

[That  the  plaintiff  is  an  infant  under  the  age  of  twenty- 
one  years ;  that  on  the day  of ,  18 — ,  the 

said  G.  H.  was  appointed,  upon  application  duly  made  in 
her  behalf,  as  guaidian  ad  litem  of  said  plaintiff,  by  the 

court  {or  \)j  Hon.  A.  O.,  a  judge  of  this  court; 

or  by  Hon.   C.   P.,  county  judge  of  county),  by 

order  duly  entered,  for  the  purposes  of  this  action.'] 

That  on  the day  of ,  18 — ,  the  plaintiff 

and  defendant  were  married  at  . 

That  at  the  time  of  such  marriage  the  plaintiff  had  not 
attained  the  age  of  sixteen  years,  she  being  tlien  of  the 
age  of years ;  and  that  at  the  time  of  such  mar- 
riage her  father  \or  mother,  or  guardian]  had  the  legal  charge 
of  the  jwrson  of  the  plaintiff,  and  that  such  marriage  took 
place  without  the  consent  of  her  said  father  \or  mother,  or 
guardian]. 

That  such  marriage  has  not  been  followed  by  consumma- 
tion or  cohabitation  of  the  jtlaintift'  and  defendant,  and  has 
not  been  ratified  by  any  mutual  assent  of  the  {daintift'  and 
defendant  after  the  plaintiff  had  attained  the  age  of  six- 
teen years.- 

*That  these  allegations  are  neces-  "Section  1742,  Code  Civ.   Pro.,  was 

sary  in  the  case  of  suit  in  behalf  of  an  amended  by  eh.  22  of  Laws  of  1887,  by 

infant  plaintiff,  see  Grantman  v.  Thrall  substituting  "  sixteen"  for  "  fourteen" 

(44  Barb.,  173) ;  Hulbert  v.  Young  (13  in  subdivisions  1  and  3.     By  ch.  24  of 

How.  Pr.,  413).   See  also  Secor  v.  Pen-  laws  of  that  year  the  age  of  legal  con- 

dleton  (47  Hun,  281) ;  Schillinger  Fire  sent  for  contracting  marriage  by  fe- 

Proof  Cement  Co.  v.  Araott  (14  N.  Y.  males  is  fixed  at  sixteen  years,  and  by 

Supp.,  326).  males  at  eighteen  years. 


AcTioii  TO  Ais^]!^uL  Makkiage.  667 

And  plaintiff  further  shows  tliat  she  is  desirous  that  the 
said  marriage  contract  should  be  declared  void,  and  that 
said  marriage  should  be  annulled,  and  praj's  judgment  de- 
claring said  marriage  contract  void  and  annulling  said  mar- 
riage, and  for  such  other  relief  as  may  be  just,  and  for  her 
costs  of  this  action. 

M.  N.,  Plaintiff's  Attorney, 
[Office  address.'] 
[A^  erification  as  in  forms  Nos.  151,  etc.] 


No.  791. 

Complaint  in  Action  to  Annul  a  Marriage  Contracted  by 
Party  under  Age  of  Legal  Consent. 

(Code  Civ.  Pro.,  §§  1743  [subd.  1],  1744.) 

[Title  of  cause.] 

The  complaint  of  the  above  named  plaintiff  respectfully 
shows,  that  he  is  the  father  {or  she  is  the  mother,  or  that 
he  {or  she)  is  the  guardian  ot  the  person,  or  that  he  {or  she) 

has  been  dulj^  appointed  by  order  of  the Court, 

made  and  entered  on  the day  of ,  18 — ,  the 

next  friend,  for  the  i^urposes  of  this  action]  of  I.  F.,  above 
named." 

That  said  I.  F.  is  an  infant  under  the  age  of  twenty-one 
years. 

That  said  I.  F.  was  married  to  the  defendant,   on  the 

day  of  ,  18 — ,  he  [or  she]  being  at  that 

time  of  the  age  of  [state  exa';t  ag  ],  and  was  not  of  the  age 
when  he  {or  she]  could  legally  consent  to  such  marriage. 

That  the  said  I.  F.  has  not;  since  he  {or  she]  attained  the 
age  of  eighteen  [or  sixteen] '^  years,  freely  cohabited  with 
the  defendant  as  his  wife  [or  as  her  husband]. 

'  See  note  2  to  form  No  122,  ^  The  age  of  consent  is  fixed  hy  the 

'  If  the  suit  is  brouglit  l)y  the  infant  common-law  at  fourteen  in  nmles  and 

make  same  allegations  as  to  appoint-  twelve   in   females.     (3  Kent's  Com., 

ment  of  guardian  as  in  form  No.  790,  78;  Co.  Litt. ,  3:!  a,  39  1).)    'I  he  Revised 

and  where  name  of  infant  occurs  say  Statutes    originally   contained   a   i)r(>- 

"  plaintiff"  instead  of  naming  infant,  vision  making  the  marriageahh;  age  of 

For  proceedings  for  appointment  of  the  male  seventeen  and  of  the  female 

next  friend,  see  section  175').  Code  Civ,  fourteen,  but  this  section  was  n-pealed 

Pro.,  and  forms  Nci.s,  600,  80G.  by  chapter  320,   §  24",    Laws  of  1830. 

See  alw)  note  2  to  form  No.  790. 


668  Forms  Relating  to 

Wherefore  the  plaintiff  i^rays  the  judgment  of  this  court 
annulling  said  marriage  and  declaring  said  marriage  con- 
tract void,  pursuant  to  the  statute  in  suoh  case  provided, 
and  that  said  d  fendant  is  not  entitled  to  dower  in  any  por- 
tion of  the  real  estate  of  the  said  I.  J?\,  or  to  any  interest  or 
distributive  share  in  the  personal  estate  of  said  I.  F.,  in  case 
of  his  [or  her]  death  intestate,'  and  that  i)laintiff  may  have 
his  [o7'  herj  costj  of  this  action,  and  such  other  and  further 
relief  as  may  be  just. 

M.  N.,  Plaintiff's  Attorney, 
[Office  address."] 


No.  792. 

Complaint  in  Action  to  Annnl  Marriage,  on  the  Gronnd 
that  Former  Knshand  or  iVife  Avas  Living. 

(Code  Civ.  Pro.,  §§  1743  [subd.  2],  1745.) 

[Title  of  cause.] 

The  complaint  of  the  above  named  plaintiff  respectfully 
shows,  thiit  on  the day  ox ,  18 — ,  the  plain- 
tiff and  defendant  were  married. 

That,  at  the  time  of  such  marriage,  the  said  defendant 
was  the  husband  [or  wife]  of  one  P.  P.,  and  that  said  P.  P., 
was  then  living,  and  that  the  marriage  of  said  defendant, 
with  said  P.  P.,  was  then  in  force. 

And  plaintiff  further  alleges,  that  the  said  marriage  be- 
tween plaintiff  and  defendant  was  contracted  by  said  plain- 
tiff [or  by  said  plaintiff  and  defendant]  in  good  faith,  and 
with  the  full  belief  that  said  P.  P,  was  dead  [or  without 
siRj  knowledge  on  the  part  of  said  plaintiff,  of  such  former 
marriage].' 

That  one  child,  a  boy  [or  girl],  named ,  the  issue 

of  such  marriage  between  the  plaintiH'  and  defendant,  was 
born  on  the day  of ,  18—,  and  is  now  living. 

Wherefore,  etc.  [same  prayer  for  relief  as  in  last  form 

*  This  clause  as  to  property  rights,  ^  See  note  2  to  form  No.  122. 

should  only  be  inserted  when  the  suit  ^  See  section  1745,  Code  Civ.  Pro., 

is  brought  by  the    husband    or  his  and   Davis   v.  Davis   (2   Misc.,    549)  ; 

guardian,  etc.  Safford  v.  Safford  (31  Abb.  N.  C,  73). 


Action  to  Annul  Mareiage.  669 

No  791,  adding  (when  children  have  been  born),  as  follows : 
that  the  said  issue  of  the  marriage  between  plaintiff  and 
defendant  {or  between  plaintiff  and  said  M.  G.),  may  be  ad- 
judged, for  all  purposes,  the  legitimate  child  of  the  said 
plaintiff  and  entitled  to  succeed  as  such,  in  the  same  manner 
as  other  legitimate  children,  to  the  real  and  personal  estate 
of  said  plaintiff,  and  that  the  plaintiff  may  be  awarded  the 
care  and  custody  thereof]. 

M.  N.,  Plaintiff's  Attorney, 
[Office  address.*] 
[Verification  as  in  forms  Nos,  151,  etc.] 


No.  793. 
Complaint  in  Action  to  Annul  Marriage  of  Idiot. 

(Code  Civ.  Pro.,  §§  1743  [subd.  3],  1746.) 

[Title  of  cause.] 

The  complaint  of  the  above  named  plaintiff  respectfully 
shows,  [t]  that  M.  R.  and  E.  J.,  who  are  both  living  \or 

allege  according  to  the  fact],'  were  married  on  the 

day  of ,  18 — . 

That,  at  the  time  of  said  marriage,  the  said  E.  J.  was  an 
idiot.  [*]. 

That  the  plaintiff  is  the  [state  relationship],  of  the  de- 
fendant, having  an  interest  to  avoid  such  marriage  by  reason 
of  his  said  relationship,  and  his  being  entitled  to  succeed  to 
the  property  of  the  said  E.  J.,  in  the  event  of  his  death,  as 
his  heir-at-law  and  next  of  kin." 

Wherefore  the  plaintiff  prays,  etc.  [prayer  for  judgment 
as  in  form  No.  791]. 

M.  N.,  Plaintiff's  Attorney. 
[Office  address.'] 

'  See  note  2  to  form  No.  122.  to  be  brought  by  any  person  as  next 

'  The  suit  may  be  brought  by  a  rela-  friend  of  the  idiot,  at  any  time  during 

live  having  an  interest  to  avoid  the  the  life-time  of  botli  parties  to  tlie  iniir- 

marriage,  at  any  time  during  the  life-  riage  where  no  relative  brings  it.    (Code 

time  of  either  party.     (Code  Civ.  Pro.,  Civ.  Pro.,  ^  1748.) 

§  1746.)  *  See  note  2  to  form  No.  122  ;  and  nee 

'  Or  the  eourt  may  allow  the  uctioii  Forman  v.  Forman  (W.)  State  Ueji.,  (!;{'.»). 


670  Forms  Ixklatino  to 

]\o.  794. 

Complaint  by  Lunatic  at  time  of  Marriage  to  Annul  Mar- 
riage after  Restoration  to  Sound  Mind. 

(Code  Civ.  Pro.,  §§  1743  [subd.  3],  1747.) 

As  in  form  No.  793  to  [fj,  and  from  thence  as  follows : 

That  on  the day  of ,  18 — ,  the  plaintiff  and 

defendant  were  married. 

That,  at  the  time  of  such  marriage,  the  plaintiff  was  a 
lunatic. 

That  on  or  about  the day  of ,  18 — ,  said 

plaintiff  was  restored  to  sound  mind,  and  has  been  ever 
since,  and  is  now  of  sound  mind. 

That  said  plaintiff  and  defendant  have  not  freely  colmb- 
ited  as  husband  and  wife,  since  the  said  plaintiff  has  been 
restored  to  a  sound  mind. 

Wherefore  the  plaintiff  prays  judgment  [prayer  for  judg- 
ment as  in  form  No.  791].' 

M.  N.,  Plaintiff' s  Attorney, 

[Office  address.*] 
[Verification  as  in  forms  Nos.  161,  etc.] 


No.  795. 

Complaint  by  Relative  of  Lunatic  to  Annul  Marriage  on 
the  Oround  of  Lunacy. 

(Code  Civ.  Pro.,  §§  1743  [subd.  3],  1747.) 

[Title  of  cause.] 

The  complaint  of  the  above  named  plaintiff  respectfully 

shows,  that  on  the  day  of ,  18 — ,  M.  F., 

the  defendant,  and  B.  H.  were  married,  [f] 

That,  at  the  time  of  such  marriage,  said  B.  H.  was,  and 
that  he  still  is,  a  lunatic  \or  and  that  he  {or  she)  continued 
to  be  such  lunatic  at  the  time  of  his  {or  her)  death,  which 
occurred  on  the day  of ,  18 — ]. 

[Continue  as  in  form  No.  793  from  (*)  to  the  end  thereof.'] 

M.  N.,  Plaintiff's  Attorney. 
[Office  address.'] 

[Verification  as  in  forms  Nos.  151,  etc.] 

>  See  Banker  v.  Banker  (63  N.  Y.,        »  See  note  2  to  form  No.  122. 
409;  aff'g  S.  C,  4  Hun,  259).  ^  See  notes  to  form  No.  793,  and  note 


Action  to  Annul  Markiage.  671 

'No.  796. 

Complaint  in  Action  to  Annul  Marriage  on  the  Ground  of 
Fraud  in  Obtaining  Consent. 

(Code  Civ.  Pro.,  §§  1743  [subd.  4],  1750.) 

[Title  of  cause.] 

The  complaint  of  the  above  named  plaintiff  respectfully 
shows,  that  on  the day  of ,  18 — ,  the  plain- 
tiff and  defendant  [or  R.  F.  and  defendant]  were  married. 

That  the  consent  of  the  said  plaintiff  [or  of  said  R.  F,]  to 
said  marriage  was  obtained  by  fraud,  the  defendant  for  the 
purpose  of  obtaining  said  consent  having  fraudulently  rep- 
resented to  the  plaintiff  [or  to  said  R.  F.],  prior  to  said 
marriage,  that  [here  state  facts  constituting  the  fraudulent 
representations],  which  representations  the  plaintiff  [or  said 
R.  F.]  believed  to  be  true  and  was  induced  thereby  to  con- 
sent to  said  marriage,  and  entered  into  said  marriage  relying 
upon  such  representations,  which  representations  plaintiff 
[or  said  R.  F.],  after  said  marriage,  discovered  to  be  wholly 
untrue. 

[Or  that  the  consent  of  the  said  plaintiff  (or  of  said  R.  F.) 
to  said  marriage  was  obtained  by  force  {or  by  duress,  and 
state  facts  in  regard  to  force  or  duress,  e.  g.)  in  that  before 
and  at  the  time  the  said  marriage  took  place  the  said  plain- 
tiff (or  the  said  R.  F.)  was  imprisoned  hj  the  said  defendant 
(and  others  in  collusion  with  him),  and  then  and  there  con- 
tinued so  imprisoned  until  the  said  plaintiff  {or  the  said  R. 
F.),  through  the  force  and  restraint  of  that  imprisonment, 
there  consented  to  said  marriage  with  the  said  defendant.] 

That  the  said  plaintiff  and  defendant  [or  said  R.  F.  and 
the  defendant]  have  not,  at  any  time  before  the  commence- 
ment of  this  action  [with  a  full  knowledge  of  the  facts  con- 
stituting the  said  fraud],  voluntarily  cohabited  as  husband 
and  wife.' 

1  to  last  form  No.  794.    This  action  have  been  annulled  at  the  suit  of  the 

may  also  be  brought  hj  a  next  friend  lunatic    after   restoration    to    reason. 

of  the  lunatic,  appointed  by  the  court  Code  Civ.  Pro.,  ^  1748.)     As  to  allega- 

for  that  purpose,  when  the  suit  is  not  tion  of  appointment  in  suit  brought 

brought  by  a  relative  of  ihe  lunatic;  by  next  friend,  see  form  No.  791. 
but  this  suit  by  a  next  frienrl  rannot        '  See  section  1750,  Code  Civ.  Pro. 
be  brought,  where  the  marriage  might 


672  Forms  Relating  to 

[And  the  plaintiff  further  alleges,  that  he  {or  she)  is  the 
fathe.r  {or  mother,  or  guardian  of  the  person)  of  the  said  R. 
P.  {or  that  he,  or  she),  is  the  (state  relationship)  of  the  said 
R.  F.,  and  has  an  interest  to  avoid  the  said  marriage,  by 
reason  of  his  {or  her)  being  the  heir-at-law  and  next  of  kin 
of  the  said  R.  F.'] 

Wherefore  the  plaintiff  prays  judgment  that  said  mar- 
riage be  annulled  and  said  marriage  contract  be  declared 
void,  pursuant  to  the  statute  in  such  case  made  and  pro- 
vided [and  that  the  custody  of  the  children  of  said  marriage 
be  awarded  to  the  said  plaintiff],  and  that  the  court  will 
make  such  provision  for  the  education  and  maintenance  of 
the  said  children  out  of  the  projDerty  of  the  said  defendant 
as  may  be  necessary  and  x)roper,'  and  that  the  plaintiff  may 
recover  the  costs  of  this  action  and  have  such  other  and 
further  relief  as  may  be  proper.' 

M.  N.,  Plaintiff's  Attorney, 
[Office  address.*] 


No.  797. 

Complaint  in  Action  to  Annul   Marriage  on  Ground  of 
Physical  Incapacity. 

(Code  Civ.  Pro.,  1743,  subd.  5.) 

[Title  of  cause.] 

The  complaint  of  the  above  named  plaintiff  respectfully 
shows,  that  on  the day  of ,  18—,  the  plain- 
tiff and  the  defendant  were  married.* 


'  See  section  1750,  Code  Civ.  Pro.  Misc.,  355);    King  v.  Brewer  (8  id., 

*  Where  there  are  children  of  the  587) ;  Riley  v.    Riley  (73  Hun,  575) ; 

marriage,  the  same  allegations  should  Anderson   v.   Anderson    (74  id  ,    56) ; 

be  made  in  regard  to  them  as  in  form  Hherman  v.  Sherman  (47  State  Rep., 

No.  792.    See,  as  to  this  relief,  section  404);   Fisk  v.  Fisk  (i^   Misc.,   406); 

1751,  Code  Civ.  Pro.  Moot  v.  Moot  (37  Hun,  2SS)  ;  Barth  v. 

3  The  fi-aud  which  enables  the  in-  Barth  (5  Month.  L.  BuL,  87) ;  MuUer 

jured  party  to  have  the  marriage  an-  v.  Muller  (21  W.   Dig.,   287);  Tait  v. 

nulled,  under  section  1743  of  Code  Civ.  Tait  (3  Misc.  218). 
Pro.,  is  not  false  representations  to  the        ''  See  note  2  to  form  No.  122. 
plaintiff  as  to  the  character  and  prop-         *The  fact  that  the  marriage  (iccurred 

erty  of  the  defendant ;  and  where  in  more  than  two  years  before  the  com- 

such  an  action  the  plaintiff  alleges  in  mencement  of  the  action  (2  R.  S.,  143, 

her   complaint   that  \wv  consent  was  §  33;  Code  Civ.  Pro.,  §  1752)  must  be 

obtained  by  fraud,  and  the  defendant  pleaded  by  the  defendant  asanaffirm- 

makes  default,  she  cannot  have  the  ative  defense,  in  like  manner  as  other 

marriage  dissolved  on  the  ground  that  statutes  of  limitation.    It  does  not,  of 

defendant  represented  it  as,  and  that  itself,  defeat  the  plaintiff's  case,  when 

she  supposed  it  to  be,  only  a  betrothal,  such  fact  appears  by  the  testimony  on 

and  that  it  has  never  been  consum-  the  default  of  the  defendant.     (Kaiser 

mated.     (Klein  v.  Wolfsohn,   1  Abb.  v.  Kaiser,  16  Hun,  602.)   Section  1752, 

N.  C,  134.)     See  Keyes  v.    Keyes  (6  Code  Civ.  Pro.,  was  amended  by  ch. 


Action  to  Annul  Marriage.  673 

That,  at  the  time  of  the  said  marriage,  the  plaintiff  be- 
lieved the  defendant,  from  [her J  dress,  appearance  and  rep- 
resentations, to  be  a  [woman]  capable  of  entering  into  the 
marriage  state,  and  of  performing  all  the  duties  and  rela- 
tions of  a  [wife]. 

That  [he]  took  [her]  to  his  residence  [or  that  she  took  up 
her  residence  with  him],  and  for  the  space  of  [six  months] 
endeavored  to  cohabit  with  [her]  as  his  [wife],  until  [he] 
ascertained,  both  from  [his]  own  knowledge  and  from  [her] 
own  admissions  and  confessions,  that  [she]  was,  and  ever 
had  been,  physically  incapable  of  cohabitation  or  sexual 
intercourse,  or  of  entering  into  the  marriage  state  by  reason 
of  [here  stkte  nature  of  incapacity].' 

And  plaintiff  alleges,  upon  information  and  belief,  that 
the  said  defendant  was,  at  the  time  of  such  marriage,  phj'si- 
cally  incapable  of  entering  into  the  marriage  state,  and  that 
such  incapacity  still  continues  and  is  incurable. 

Wherefore  the  phiintiff  prays  judg-ment  that  the  said 
marriage  contract  may  be  declared  void,  and  that  said  mar- 
riage may  be  annulled  pursuant  to  the  statute  in  such  case 
made  and  i^rovided  [and  that  the  plaintiff  may  have  (her) 
costs  of  this  action],  and  such  other  and  further  relief  as 
may  be  proper. 

]M.  jST.,  PlaintiiPs  Attorney. 
[Office  address.'] 

[Verification  as  in  forms  Nos.  151,  etc.] 


ISTo.  798. 

Aifidavit  to  Obtain  Order  of  Beference  in  Suit  to  Annul 
Marriage  on  the  Ground  of  Non-age. 

(Code  Civ.  Pro.,  §  1753;  Gen.  Rules  of  Practice,  No.  74.) 

[Title  of  cause.] 

County,  ss.  : 

A.  B.,  being  duly  sworn,  says,  that  lio  is  [the  plaintiff  in 
the  above  entitled  action]. 

809  of  Laws  of  ISO!),  ko  fis  to  i'(!a(l  as  capable  against  the  other  jiarty,  ]irovi- 

followH:  (led  the  incaiiabhi  i)arty  was  unaware 

§1752.  An  actjfin  to  annul  a  mar-  of  the  incapacity  at  th(>  time  of  mar- 

rjaf^e,  on  the  f,'-i-oimil  that  one  of  the  riag'e,  or  if  aware  of  kucIi  incajwicity, 

l)artie3   wa.s   jihy.sically  incajjahle   of  (li(l  not  knowit  WJUsincui-aMc!.   Such  an 

entering'  into  the  mar)'iag'<!  Htate,  may  action  mu.st  be  commt^iiccd  Ix'foi-c  five 

be  maintained    liy  the  injurcil    ])ai'ty  ycai-H  have  exjiircd  .since  t lie  imuTiape. 

ag"ain.st  the  i)arty  who.se  incapacity  is  A    note   on    I)i\(ii"ce  for   Im|ioteni!e 

ailejced  ;  or  Huch    an   action    may  bi;  will  be  found  in  H  Abl».  N.  C,  bS7. 

maintained  by  the  party  who  wan  in-  '  Th<i  alle^fationn  in   this  ])arag'raph 


674  Forms  Relatixg  to 

Tljat  the  complaint  in  said  action  seeks  to  annul  the  mar- 
riage between  [plaintiff  and  defendant],  [*]  on  the  ground 
that  the  [plaintiff]  was  under  the  age  of  legal  consent  at  the 
time  such  marriage  was  contracted. 

That  [plaintiff']  is  now  of  the  age  of years. 

That  [the  i)arties  to  said  action]  have  not  freely  coliabited 
for  any  time  as  husband  and  wife,  after  [the  plaintiff"]  had 

attained  the  age  of  consent,  to  wit :  the  age  of 

years.' 

A..  B. 

[Jurat  as  in  form  No.  46.] 


No.  799. 

Affidayit  for  Reference  in  Suit  to  Annul  Marriage  on  the 
Ground  that  Consent  was  Ohtained  hy  Force,  Fraud  or 
Duress. 

(Code  Civ.  Pro.,  §  1753;  Gen.  Rules  of  Practice,  No.  74.) 

As  in  form  No.  798  to  [*],  and  from  thence  as  follows : 
On  the  ground  that  the  [plaintiff's]  consent  thereto  was  ob- 
tained by  force  \or  fraud,  or  duress]. 

That  there  has  been  no  voluntary  cohabitation  between 
the  parties  to  such  marriage  as  man  and  wife  [with  full 
knowledge  of  the  facts  constituting  the  fraud].* 

A.  B. 

[Jurat  as  in  form  No.  46.] 


No.  800. 

AflBdayit  to  Obtain  Order  of  Reference  in  Suit  to  Annul 
]ttarriage  on  Ground  of  Lunacy. 

(Code  Civ.  Pro.,  §  1753;  Gen.  Pules  of  Prac,  No.  74.) 

As  in  form  No.  798  to  [*],  and  from  thence  as  follows: 
On  the  ground  that  the  plaintiff  was  a  lunatic  at  the  time 
such  marriage  was  contracted. 

That  the  said  lunacy  still  continues  [or  that  the  parties 

are  substantially  from  the  bill  of  com-  males.     See  note  3  to  form  No.  791 

plaint  in   Dcvenbag-h  v.   Devenbag'h  and  note  therein  referred  to. 

(5  Paige,  554).  *  See  Code  Civ.   Pro.,   §1750.     An- 

"  See  note  2  to  form  No.  122.  derson   v.    Anderson    ("4   Ilun,    56) ; 

'  Eighteen  in  males,  sixteen  in  fe-  Chambers  v.  Chambers  ((36  St.  R.  653). 


AcTToisr  TO  Annul  Makkiage.  675 

have  not  cohabited  as  husband  and  wife,  after  tlie  plaintiff 
was  restored  to  his  reason]. 

A.  B. 
[Jurat  as  in  form  'No.  46.] 


No.  801. 
Order  of  Reference  in  Action  to  Annul  Marriage, 

(Code  Civ.  Pro.,  §  1758;  Gen.  Rules  of  Prac,  No.  74.) 

[At,  etc.,  as  in  form  No.  80.] 
[Title  of  cause] 

On  reading  and  filing  affidavit  showing  [recite  briefly  con- 
tents of  affidavit,  under  rule  74],  and  it  ai:)pearing  that  the 
summons  herein  was  served  upon  the  defendant  more  than 
twenty  days  since,  and  that  the  defendant  lias  not  appeared 
[or  has  not  answered  the  complaint  herein] : 

It  is  hereby  ordered,  that  it  be  referred  to  I.  J.,  of , 

as  referee,  [*]  to  take  proof  of  the  facts  alleged  in  tlie  com- 
plaint in  this  action,  and  to  take  the  examination  of  the 
plaintiff  specially  as  to  the  fact  that  the  parties  have  not 
freely  cohabited  for  any  time  as  husband  and  wife  after 
the  plaintiff  had  attained  the  age  of  consent  [or  as  to  the 
other  facts  on  which  his  examination  is, required  by  rule  74 
in  the  different  cases],  and  that  he  report  thereon  to  this 
court  and  file  the  proofs  taken  by  him  with  his  report. 


No.  802. 

Order  of  Reference  in   Action  to  Dissolve  Marriage  on 
Ground  of  Physicial  Incapacity. 

(Code  Civ.  Pro.,  ^  1713,  siibd.  5.) 

As  in  form  No.  801  to  [*],  and  from  thence  as  follows: 
To  take  proof  of  the  materia]  facts  charged  in  the  complaint 
in  this  action,  and  to  report  such  i)r{)of  to  tlie  court,  with 
his  opinion  thereon. 

And  it  is  further  ordered,  that  the  said  ref<M-ee  inquire 
and  report  wlictlinr  thn  dplVndant,  at  the  time  of  the  mar- 
riage with  plainliir,  nllfgcd  in  the  complaint,  was  i)hysically 


676  Forms  Relating  to 

incapable  of  entering  into  the  marriage  state,  and  whether 
the  said  incapacity  still  continues  and  is  incurable. 

That  the  said  defendant  be  examined  upon  oath  upon 
such  reference  as  to  the  several  matters  alleged  in  said  com- 
plaint, and  that  the  defendant  submit  herself  to  such  surgical 
examination  and  to  such  examination  by  matrons  as  the 
said  referee  may  think  proper  to  direct,  for  the  pui-pose  of 
ascertaining  the  fact  of  her  alleged  incapacity  ;  but  that  no 
person  shall  be  present  at  any  such  examination,  except 
the  surgeons  and  matrons  who  may  be  selected  by  the  ref- 
eree for  that  purpose,  unless  with  her  consent,  and  that  in 
the  selection  of  surgeons  and  matrons  for  that  purpose  the 
said  referee  have  a  due  regard  to  the  feelings  and  wishes  of 
the  said  defendant. 

And  it  is  further  ordered,  that  no  person  shall  be  per- 
mitted to  be  present  before  the  referee,  on  the  said  refer- 
ence, except  the  parties  to  this  suit  and  their  counsel  and 
witnesses,  and  such  of  the  friends  of  either  of  the  parties  as 
they,  or  either  of  them,  may  request  to  attend  upon  such 
reference. 

And  it  is  further  ordered,  that  the  said  master  do  return 
the  proofs  taken  before  him,  in  a  schedule  to  his  report. 

[And  that  the  i^laintiif,  under  the  directions  of  the  referee, 
furnish  the  necessary  funds  to  pay  the  expenses  of  the  sur- 
gical examination  of  the  defendant,  if  a  suflEicient  and  satis- 
factory examination  has  not  already  been  made.]* 


No.  803. 
Report  of  Referee  in  Action  to  Annul  Marriage. 

(Code  Civ.  Pro.,  §  1753;  Gen.  Rules  of  Prac.,  No.  74.) 

[Title  of  cause.] 

To  the Court : 

In  pursuance  of  an  order  of  this  court,  made  and  entered 

in  the  above  entitled  action  on  the day  of , 

18 — ,  by  which  it  was  referred  to  me  [*]  to  take  proof  of 
the  facts  alleged  in  the  complaint  in  this  action,  and  to  take 
the  examination  of  the  plaintiff  specially  as  to  the  fact  that 


This  form  is  given  in  Devanbagli  v.  Devanbagh  (5  Paige,  558). 


AcTiox  TO  Annul  Marriage.  677 

[as  stated  in  order],  and  to  i-eport  thereon  with  the  proofs 
taken  by  me,  I,  the  said  referee,  do  hereby  report : 

That  I  have  taken  proofs  and  examinations  in  this  ac- 
tion, on  the  part  of  the  plaintilf,  as  required  b}"  said  order, 
which  proofs  and  examinations  are  annexed  to  this  my  re- 
port, and  form  part  thereof. 

And  I  further  report  that,  in  my  opinion,  the  facts  alleged 
in  the  complaint  are  true,  and  have  been  fully  proved  and 
established  before  me. 

That  the  said  A.  B.  was  under  the  age  of  legal  consent  at 
the  time  of  the  marriage  alleged  in  the  complaint,  which  I 

find  took  place  on  the day  of ,  as  alleged 

in  said  complaint  [or  that  the  said  A.  B.  was  a  lunatic  at 
the  time,  etc. ;  or  otherwise,  as  the  case  may  be]. 

Dated ,  18—. 

I.  J.,  Ref&ree, 


No.  804. 

Final  Judgment  in  Action  to  Annul  Marriage  on  Ground 
of  Non-age,  Lunacy  or  Idiocy,  etc. 

(Code  Civ.  Pro.,  §  1753.) 

[At,  etc.,  as  in  form  No.  80.] 
[Title  of  cause.] 

Upon  reading  and  filing  the  report  of  I.  J.,  referee,  ap- 
pointed herein  by  order  of  this  court,  dated ,  18^ 

[and  notice  of  motion  for  confirmation  thereof  and  for  final 
•judgment  thereupon,  at  this  term,  with  proof  of  due  service 
thereof  upon  defendant's  attorney],  and  on  reading  [name 
opposing  papers] : 

It  is  hereby  ordered,  on  motion  of  E.  C,  attorney  for  the 
plaintiff  [after  hearing  J.  F.,  for  the  defendant  {or  no  one 
appearing  to  oppose)],  that  the  said  report  be  and  the  same 
is  hereby,  in  all  things,  confirmed. 

And  it  is  further  ordered  and  adjudg-ed,  that  tlic  marriage 
contract  between  the  plaintiff',  A.  B.,  and  tlie  defendant, 
C.  B.,  be  and  the  same  is  hereby  declared  void,  and  that 
the  marriage  between  said  plaintiff  and  the  said  defendant 
be  and  the  same  is  hereby  annulled  from  the  date  of  this 


678  Forms  Relating  to 

judgment,' because  [*]  the  plaintiff  had  not  attained  the  age 
of  legal  consent,  at  the  time  of  such  marriage,  and  that  the 
parties,  phiintiff  and  defendant,  are  free  from  tlie  obliga 
tions  of  nuirriage  with  each  other. 

And  it  is  further  ordered  and  adjudged*  [state  any  judg- 
ment made  as  to  costs]. 

[Or  in  case  of  lunacy  or  idiocy,  or  i)liysical  incapacity, 
as  above  to  (*),  and  from  thence  as  follows :  The  plaintiff 
was  a  lunatic  {or  idiot,  or  the  defendant  was  physically  in- 
capable of  entering  into  the  narriage  state)  at  the  time  of 
such  marriage,  and  that  the  parties,  plaintiff  and  defend- 
ant, are  free  from  the  obligations  of  marriage  with  each 
other, 

(In  cases  of  lunacy  or  idiocy,  where  there  are  children  of 
the  marriage,  add:) 

And  it  is  adjudged  that  E.  B.  and  F.  B.,  the  children  of 
said  marriage,  are  entitled  to  succeed  to  the  real  and  per- 
personal  estate  of  the  said  defendant. 

And  it  is  further  adjudged  (state  any  judgment  made  as 
to  cost-^).] 

[Or  in  case  of  existing  former  marriage,  as  aoove  to  (*), 
and  from  thence  as  follows  :  A  former  husband  {or  wife)  of 
the  defendant,  to  wit  (name  former  husband  or  wife),  was 
living  at  the  commencement  of  this  action,  and  the  marriage 
of  defendant  with  said  former  husband  {or  wife)  was  then 
in  force,  and  that  the  parties,  plaintiff  and  defendant,  are 
free  from  the  obligation  of  marriage  with  each  other. 

And  it  is  further  adjudged  and  determined,  that  the  said 
subsequent  marriage,  between  the  plaintiff  and  the  defend- 
ant, was  contracted  by  the  plaintiff  (and  defendant)  in  good 
faith,  and  with  the  full  belief  that  said  former  husband  {or 
wife)  was  dead  {or  without  any  knowledge  on  tlie  part  of 
the  plaintiff  of  such  former  marriage),  and  that  E  B.  and 
F.  B.,  the  children  of  said  marriage  between  plaintiff  and 
defendant,  are,  for  all  purpo=ps,  the  legitimate  children  of 
said  plaintiff,  and  are  entitled  to  succeed,  as  such,  in  the 
same  manner  as  other  legitimate  children  to  the  real  and 
personal  estate  of  said  plaintiff;  and  the  custody  of  said 

'Such   marriage   is   void   from  the  §4.)    See,  also,  Chambers  v.  Chambers 

time  its  nullity  shall  be  declared  by  a  (06  State  Rep.,   155) ;   Day  v.  Day  (4 

court  of  competent  authority.     (See  3  Misc.,  235). 
R.  S.  [7th  ed.],  p.  2332,   2   R.  S.  139, 


Action  to  Annul  Marriage.  67u 

E.  B.  and  F.  B,  is  hereby  awarded  to  the  said  plaintiff,' 
and  that  the  defendant  is  not  entitled  to  dower  in  the  real 
estate  of  the  plaintiff,  nor  to  any  distributive  share  or  inter- 
est in  liis  personal  estate  in  case  of  his  death  intestate. 

(Add  any  provisions  as  to  costs.)] 

{Or  in  case  of  force,  duress  or  fraud,  as  above  to  (*),  and 
from  thence  as  follows :  The  consent  of  the  plaintiff'  to  said 
marriage  contract  was  obtained  by  force  {or  by  duress,  or 
by  fraud),  and  that  the  parties,  plaintiff'  and  defendant,  are 
free  from  the  obligations  of  marriage  with  each  other. 

And  it  is  further  adjudged,  that  the  custody  of  E.  B.  and 

F.  B.,  the  children  of  said  plaintiff  and  defendant,  be  and 
is  hereby  awarded  to  the  plaintiff ;  and  that  the  said  de- 
fendant pay  to  the  said  plaintiff  the  sum  of dollars 

yearly,  in  semi-annual  payments,  for  the  education  and 
maintenance  of  said  children,  until  the  said  children  shall 
arrive  at  the  age  of  twenty  one  years,  or  until  the  further 
order  of  this  court,  and  give  security  therefor  to  the  clerk 
of  this  court,  to  be  approved  by  a  justice  of  this  court.' 

And  it  is  further  adjudged,  that  the  defendant  pay  to  the 

plaintiff dollars,  hereby  adjudged  as  the  costs  of 

this  action.] 


No.  80.^. 

Petition  for  Appointment  of  Next  Friend  for  Infant,  Idiot 
or  Lunatic  to  Bring  Action  to  Annul  Marriage. 

(Code  Civ.  Pro.,  §  1755.) 

To  the Court  : 

The  petition  of  G.  H.  respectfully  shows  : 

That  he  is  a  friend  [or  state  relationship]  of  A.  B.,  of 


That  said  A.  B.  is  an  infant  under  the  age  of  twenty-one 

years,  and  of  the  age  of years  and  upwards  [or  an 

idiot,  or  a  lunatic]. 

That  a  marriage  has  been  contracted  by  said  A.  B.  with 
C.  D.,  on  the day  of ,  18—. 

That  at  the  time  of  such  marriage  said  A.  B.  had  not  at- 


'See  section   1745,  Code  Civ.  Pro.  ;     Al.l).  N.  C,  73). 
ind   see,  al.so,  SafTord   v.   Saflord  (31         *S(Mf  Hcction  1751,  Code  Civ.  Pro. 


680  Forms  Relating  to 

tained  the  age  of  legal  consent  to  such  marriage  [or  was 
an  idiot  {or  was  and  still  is  a  lunatic)]. 

That  both  said  A.  B.  and  C.  D.  are  still  living,  and  that 
as  your  petitioner  is  informed  and  believes  they  have  not 
freely  cohabited  together  for  any  time  after  said  plaintilf 
had  attained  the  age  of  legal  consent. 

And  your  petitioner  prays  that  he  [or  that  I.  F.,  of } 

may  be  appointed  the  next  friend  of  said  A.  B.  for  the  pur- 
pose of  bringing  an  action  to  have  such  marriage  declared 
void  and  annulling  said  marriage. 

Bated ,  18—. 

G.  H. 

[Verification  as  in  form  No.  52.] 

Consent  of  Next  Fkiend. 

I,  I.  F.,  of  ,  hereby  consent  to  be  appointed  the 

next  friend  of  A.  B.  for  the  purpose  of  bringing  the  action 
mentioned  in  the  foregoing  petition. 

Dated ; — ,  18—. 

I.  F. 


No.  806. 

Or.Ier  Appointing  Next  Friend  to  Bring  Action  to  Annul 
Marriage  Contract  on  Behalf  of  Infant,  etc. 

(Code  Civ.  Pro.,  §  1755.) 

[Title  of  application.] 

On  reading  and  filing  the  petition  of  G.  H.,  dated , 

praying  for  his  appointment  [or  for  the  ap]3ointment  of  I. 
F.]  as  the  next  friend  of  A.  B.,  an  infant  [or  a  lunatic,  or  an 
idiot],  for  the  purpose  of  bringing  an  action  to  have  declared 
void  the  marriage  contract  between  said  A.  B.  and  C.  B., 
and  to  annul  said  marriage  [with  the  written  consent  of  said 
I.  F.  to  accept  said  appointment] : 

Now,  on  motion  of  K.  L.,  counsel  for  said  G.  H.,  ic  is 
hereby  ordered,  that  the  said  G.  H.  be  and  he  is  hereby 
authorized,  as  the  next  friend  of  said  A.  B.,  to  maintain  an 
action  against  said  C  B.  for  the  purpose  of  declaring  void 
said  marriage  contract  and  of  annulling  said  marriage. 


Action  for  Divorce.  681 


Article  Second. 
forms  relating  to  action  for  a  divorce. 

(Code  Civ.  Pro.,  Ch.  15,  Tit.  1,  Art.  2.) 

No.  807.  Complaint  in  action  to  dissolve  marriage  contract. 

808.  Answer  in  suit  for  dissolution  of  marriage  contract. 

809.  Order  of  reference  in  suit  to  dissolv.  marriage. 

810.  Referee's  report  in  action  to  dissolve  marriage. 

811.  Final  judgment  dissolving  marriage  on  defr.rlt  of  the  defendant,  or 

where  the  marriage  does  not  deny  the  adultery. 
813.     Final  judgment  dissolving  marriage  after  the  trial  of  a  feigned  issue. 


No.  807. 

Complaint  in  Action  to  Dissolve  Marriage  Contract. 

(Code  Civ.  Pro.,  §  1756.) 

[Title  of  cause.] 

The  complaint  of  the  above  named  plaintiff  respectfully 
shows,  that  on  the day  of ,  18—,  the  plain- 
tiff and  defendant  were  married  at ,  in  the  State  of 

New  York  \or  state  other  jurisdictional  facts  as  to  residence 
required  by  section  1756]. 

And  plaintiff  further  states  upon  information  and  belief, 
that  since  the  said  marriage  wr.s  contracted,  and  on  or  about 

the  day  cf ,  18 — ,  the  defendant,  at  the 

of ,  in  the   State  cf  ,  committed 

adultery  with  one  I.  M.,  at  [state,  as  nearly  as  jiossible,  the 
locality  of  the  offense  ;  e,  g.,  at  iho  house  of  C.  R.]. 

That  on  or  about  the day  of ,  18 —  [or 

some  time  in  the  month  of ,  in  the  year  18 — ^,  the 

defendant  committed  adultery  with  one  F.  P.,  at  the 

hotel,  in  the of ,  in  the  State  of , 

and  that  the  defendant,  at  various  other  times  in  the  year 
18 — ,  committed  adultery  witli  various  other  [women]  whose 
names  are  unknown  to  the  plaintiff,  at  certain  other  X)laces 
in  said  [city]  to  the  plaintiff  unknown.' 

'  The  general  principle  by  which  the  what  he  will  be  required  to  meet  by 

sufBciency  of  a  pleading  in  actions  of  proof  at  the  trial. 

this  character  is  to  be  tested  is,  that  the  The  name  of  fbe  person  Avith  whom 

charge  should  be  stated  with  such  defi-  the  place  where  and  tlic  time  when  the 

niteness  and  certainty  as  will  be  kuIII-  adultery  was  committed  should,  as  a 

cent  to  enable  the  dcfcudaut  to  know  general  rule,  be  set  forth  in  the  com- 

86 


682  Forms  Relating  to 

That  the  said  acts  of  adultery  charged  were  committed 
without  the  consent,  connivance,  privity  or  procurement  of 
the  plaintiff. 

That  live  years  have  not  elapsed  since  the  discovery  of 
the  fact  that  such  adultery  had  been  committed  by  the  de- 
fendant, and  that  the  plaintiff  has  not  voluntarily  cohabited 
with  the  defendant  since  such  discovery.' 

And  plaintiff"  further  alleges  that  as  [she]  is  informed  and 
believes,  the  said  defendant  has  been  living  in  adulterous 
intercourse  with  one  E.  F.  [or  with  the  said ],  at 


That  five  years  have  not  elapsed  since  the  commencement 
of  such  adulterous  intercourse  was  discovered  by  the  plain- 
tiff,' and  that  such  adulterous  intercourse  between  the  de- 
fendant and  the  said  E.  F.  was  begun  and  is  continued 
without  the  consent,  connivance,  privity  or  procurement  of 
the  plaintiff,  and  that  X)laintiff  has  not  voluntarily  cohab- 
ited with  the  defendant  since  the  discovery  thereof. 

That  111  plaintiff  has  no  jnoperty  of  her  own,  but  that 
the  defen  .ant  is  seized  and  j)ossessed  of  real  and  personal 

estate  to  the  amount  of dollars,  and  that  his  annual 

income  is  at  least dollars.'' 


plaint.    This  rule,  however,  is  liable  to  v.  Carrillo  (53  Hun,  359) ;  Gridley  v. 

exceptions    and   moditicalions  to  any  Gi-idiey  (7  Civ.  Pro.  Rep.,  215);  Stev- 

extent  rec^uired  by  the  exigencies  of  ens  v.  Stevens  (.j-t  Hun,  490)  ;  Halsted 

the  action,  pi-ovided  the  above  prin-  v.  Halsted  (7    Misc  ,  23)  ;  Bullock  v. 

ciple  is  not   infringed.     (Pragmagiori  Bullock  (85  Hun,  873)  ;  Van  Benthuy- 

V.  Pragmagiori,  7  Robt.,  302.)  sen   v.    I3enthuysen   (17   State    Rep., 

Whei-e  the  complaint  avers  the  com-  978);  Becker  v.  "Becker  {N.  Y.  Daily 

mission  of  the  ofl'ense  with  a  person  Reg.,  Jany.   27,  1887) ;  Dickinson  v. 

whose  name  is  unknown  to  plaintiff,  Dickinson  (63  Hun,  51G). 

at  times  between  specified  dates  and  in  Where  the  complaint  alleged  that 

a  town  or  city  named,  with  the  further  the  defendant,  from  the  first  day  of 

avernaent  that   plaintiff  is  unable  to  November,  1876,  up  to  the  time  of  the 

state  more  particularly  the  times  and  verification  of  the  complaint,  went  to, 

places,    it    is    sufficient   to   authorize  visited   and   at   various    houses    and 

evidence   in   proof  of  the   offense  so  places  of  prostitution  or  assignation  in 

charged,  and  if  it  be  proved,  to  sustain  the  city  of  New  York  (which   times 

the  action,  although  no  proof  be  given  and  jilaces  the  plaintifl  could  not  par- 

of  offenses  particularly  charged.   (Mit-  ticularize),   committed    adultery    and 

chell  V.  Mitchell,  61  N.  Y.,  398.)  had  carnal  connection  with  a  pei-son 

See,  also,  Codd  v.   Codd  (2  J.  Ch.,  therein  named :  held,  that  the  allega- 

224);  Germond  v.  Germond  (6  J.  Ch.,  tion  should  be  rendered  more  definite 

347);  Wood   v.  Wood  (2   Paige,   113);  and  certain  as  to  the  place  at  which 

Bokel    V.  Bokel   (3   Edw.    Ch.,376);  the  adultery  was  committed.     (Card- 

Heyde  v.  Ilcyde  (4  Sandf.  Ch.,  692) ;  well  v.  Cardwell,  12  Hun,  92.) 

Strong  V.  Strong   (3  Robt.,  719),  and  'See  rule  72  of  Gen.  Rules  of  Prac, 

Tim   V.    Tim  (47   How.,   253),    which  Church  v.  Church  (7  State  Rep.,  177). 

cases  are  considered  and  distinguished  *  See  Code  Civ.  Pro,,  §  1759,  subd.  3, 

in  Mitchell  v.  Mitchell  (siqva) ;  and  as   amended  by  ch.  728   of  Laws  of 

see,  also,  as  to  complaint,  De  Carrillo  1894,  taking  effect  Sept.  1,  1894. 


Action  for  Divorce.  683 

That children  have  been  born  of  the  marriage  of 

said  plaintiff  and  defendant,  one  a  boy  named  F.,  aged 

years,  on  the day  of  ,  18 — ,  and 

the  other  a  girl  named  H.,  aged years,  on  the 

day  of ,  18 —  '  [but  i)laintifl  alleges  that 

he  is  not  the  father  of  the  said  H.,  she  being  illegitimate].' 

Wherefore  the  plaintiff  prays  judgment  divorcing  the  said 
plaintiff  and  defendant  and  dissolving  the  said  marriage, 
and  that  the  plaintiff  may  be  awarded  the  custody  of  said 
children  [and  that  the  court  may  require  the  defendant  to 
provide  suitably  for  the  education  and  maintenance  of  the 
said  children,  and  for  the  support  of  the  plaintiff,  and  that 
the  plaintiff  may  have  temporary  alimony  and  the  costs  of 
this  action],'  and  that  the  said  H.  may  be  adjudged  to  be 
illegitimate  and  that  plaintiff  may  have  such  other  and 
further  relief  as  may  be  proj)er. 

M.  N.,  Plaintiff \s  Attorney. 
[Office  address.'] 

[Verification  as  in  forms  Nos.  151,  etc.] 


No.  808. 
Answer  in  Suit  for  Dissolution  of  the  Marriage  Contract. 

(Code  Civ.  Pro.,  §  1758.) 

[Title  of  cause.] 

The  defendant,  answ^ering  the  complaint  of  the  plaintiff 
in  this  action : 

First.  Admits  the  marriage  of  the  plaintiff  and  defend- 
ant, as  alleged  in  the  complaint. 

Second.  Denies  each  and  every  other  allegation  contained 
in  said  comi^laint,  relative  to  her  having  committed  adultery 


'  The  legitiiimcy  of  a  cliild  bom  or  all  the  children,   begotten  before  the 

begotten  before  the  coniniission  of  the  commencement  of  the  action,  must  be 

ofTense  charged,  in  an  action  brought  presumed.     (Code  Civ.  Pro.,   §  17C0, 

by  the  hu.sband,  is  not  affected  by  a  subd.  1.)     Sec,  as  to  question  of  legili- 

judgnient  dissolving  the  marriage;  but  macy  in  suit  brought  by  wife,  Code 

the  legitimacy  of  any  other  child  of  tlie  Civ.  Pro.,  §  ITSQ,  subd.  1. 

wife  may  be  determined,  as  one  of  tlie  '  See  rule  76  of  Gen.  Rules  of  Praa 

issues  in  the  action.    In  the  absence  of  »  p,.,.  section  1700,  Code  Civ.  Pro. 

proof  to  the  contrary  the  legitimacy  of  *  Sec  uotc  «  to  form  No.  122. 


684  Forms  Relating  to 

with  the  persons  named  in  said  complaint,   or  either  of 
them. 

Third.  And  for  a  fiirtlier  defense  alleges,  that  the  acts  of 
adultery  alleged  in  the  complaint  were  committed  by  the 
procurement  and  with  the  connivance  of  the  i)laintiff. 

Fourth.  And  for  a  furtlier  defense  alleges,  that  the 
offenses  charged  in  the  complaint  have  been  forgiven  by 
the  plaintiff. 

Fifth.  And  for  a  further  defense  alleges,  that  this  action 
was  not  commenced  within  live  years  after  the  discovery  by 
the  plaintiff  of  the  offenses  charged,  or  any  of  them,  or  of 
he  commencement  of  the  alleged  adulterous  intercourse. 

Sixth.  And  for  a  further  defense  alleges,  that  the  plain- 
tiff has  also  been  guilty  of  adultery  since  the  said  mjuriiige 
between  the  parties,  to  wit :  at  divers  times  and  places,  and 
especially,  that  on,  etc.  [allege  the  commission  of  specific 
acts,  and  the  times  and  j)laces,  substantially  as  in  comi)laint, 
form  No.  807],  which  said  several  acts  of  adultery  defendant 
alleges  were  committed  without  the  procurement,  conniv- 
ance, privity  or  consent  of  the  defendant,'  and  the  defendant 
sets  up  the  same  as  a  counterclaim,'  and  prays  judgment 
that  the  said  marriage  between  the  plaintiff  and  defendant 
be  dissolved,  and  a  divorce  adjudged  in  favor  of  the  defend- 
ant, and  that  said  defendant  be  allowed  her  costs  of  this 
action,  and  such  other  and  further  relief  as  may  be 
proper,  ^ 

M.  N.,  DefendanV  s  Attorney. 

[Verification  as  in  forms  Nos.  151,  etc."] 

'See   Morrell   v.  Morrell  (3   Barb.,  contained    in    the    Lill.     (Hopper   v. 

236  ;  S.  C,  1  id.,  318)  ;  Leseuer  v.  Le-  Hopper,  11  Paige,  4(5,  47  ;  citing  Wood 

seuer  (31  Barb.,  330) ;  Smith  v.  Smith  v.  Wood,  2  id.,  108  ;  Dillon  v.  Dillon, 

(4  Paige,  432).  3  Curt.  Eccl.  Rep.,  30  ;  see,  also,  Hol- 

''See  section  1770,  Code  Civ.  Pro.  lenbeck  v.  Clow,  9  How.,  289.)     See, 

^  Where  a  defendant,  in  his  answer,  also,    Vincent    v.    Vincent   (16    Daly, 

denies,  upon  oath,  that  he  has  been  534)  ;  Huntley   v.  Huntley   (73   Hun, 

gTiilty  of  the  adultery  charged  in  the  261)  ;  Kelly  v.  Kelly  (12   Misc.,  4o7) ; 

complainant's   bill,   he    may,   in    the  McCarthy   v.    McCarthy   (143  N.  Y., 

same  answer,  set  up  the  adultery  of  235)  ;  Peck  v.  Peck  (44  Hun,  290). 
the  complainant  as  a  defense  to  the         *  It  is  not  necessary  to  verify  the 

suit,  or  any  other  matter  which  will  answer,  notwithstanding  the  verifica- 

be  pertinent,  if  the  complainant  should  tion   of   the    complaint.     (Code    Civ. 

succeed  in    proving    the    allegations  Pro.,  1757.) 


Action  for  Divorce.  685 

No.  809. 
Order  of  Reference  in  Suit  to  Dissolve  Marriage. 

(Code  Civ.  Pro.,  §  1757;  Gen.  Rules  of  Prac.,  No.  73.) 

[At,  etc.,  as  in  form  No.  80. J 

[Title  of  cause.] 

The  summons,  Avitli  a  copy  of  the  complaint  in  this  action, 
having  been  personally  served  upon  the  defendant,  more 
than  twenty  days  since,  and  the  defendant  having  made 
default  in  appearing  [or  in  pleading]  [or  not  having  by  (his) 
answer  put  in  issue  the  allegations  of  adultery  made  by  the 
complaint],  and  on  reading  [name  opposing  papers],  and  on 
motion  of  R.  G.  for  the  plaintiff,  after  hearing  P.  F.  for  the 
defendant  [or  due  notice  of  this  motion  having  been  given 
to  the  defendant's  attorney  and  no  one  appearing  to  op- 
pose] : 

It  is  hereby  ordered,  that  it  be  referred  to  G.  H.,  of , 

to  take  proof  of  all  the  material  facts  alleged  in  the  said  com- 
plaint [and  upon  the  question  of  the  legitimacy  of  M.  B.,  one 
of  the  children  mentioned  in  the  complaint],'  and  to  report 
such  proof  to  the  court,  with  his  opinion  thereon ;  and  that 
the  plaintiff  be  examined,  on  oath,  upon  such  reference  as  to 
whether  the  adultery  charged  was  committed  without  the 
consent,  connivance,  privity  or  procurement  of  the  plaintiff  ; 
and  as  to  whether  five  years  have  not  elapsed  since  the  dis- 
covery of  the  fact  that  such  adultery  was  committed  ;  and 
as  to  whether  the  plaintiff  has  not  voluntarily  cohabited 
with  the  defendant  since  sncli  discovery,  and  if  it  shall  ap- 
pear that  at  the  time  of  the  offense  charged  the  defendant 
was  living  in  adulterous  intercourse  Avith  the  pei'son  with 
whom  the  offense  is  alleged  to  have  been  committed;  that 
plaintiff  be  further  examined,  on  oath,  as  to  wliether  live 
years  have  not  claj^sed  since  the  commencement  of  such 
adulterous  intercourse  was  discovered  by  the  j^laintiff,"  and 
that  he  also  inquire  and  report  whether  there  is  any  judg- 
ment or  decree  in  any  court  of  the  Stato.  of  competent  juris- 
diction against  the  plaintiff  in  favor  of  the  defendant  for  a 
divorce  upon  the  ground  of  adultery.' 

'Se«  rule  7.")  of  (Jen.  Rules  of  Prac.  «0  Hun,  13G,  rev'^'  on  this  jjoint  S.  C, 

'See  CJen.    Rules  of  Prac.,  No.  72.  7  Misc.,  IWS).     Se<!,  hLso,.  as   to   cnm- 

This  rule  has  no  ai)i)lication  to  con-  ])lianc(!  wi'.h  (his  rule,  ]}iirj,'-ess  v.  Rur- 

tested  cases,  so  far  us  it  relates  to  the  g'css  (52  Sui)er.  Ct.,  545). 
api)ointrnent  of  refrjrees  (Ives  v.  Iv<!«, 


686  Forms  Relating  to 

And  that  proof  be  taken  by  said  referee  upon  the  ques- 
tion of  the  legitimacy  of  M.  B. 

[And  it  is  further  ordered,  that  said  referee  inquire  into 
the  situation  and  value  of  the  real  property  of  the  defend- 
ant, and  as  to  what  would  be  a  reasonable  and  proper  sum 
to  be  allowed  to  the  plaintiff  for  alimony  and  for  her  sup- 
port and  maintenance  during  her  life,  and  for  the  support 
and  maintenance  and  education  of  her  children  (naming 
them)  until  they  shall  have  arrived  at  the  age  of  twenty- one 
years  respectively.'] 

[And  that  said  referee  inquire  and  report  in  regard  to  the 
ages  and  circumstances  of  said  children,  and  as  to  who 
would  be  the  proper  person  to  take  the  care  and  custody  of 
such  children,  with  such  other  facts  in  regard  thereto  as  the 
parties  claiming  the  custody  of  said  children  shall  bring 
before  said  referee  and  as  to  him  shall  seem  pertinent  and 
proper. '  ]  

No.  810. 
Referee's  Report  in  Action  to  Dissolve  Marriage  Contract. 

(Code  Civ.  Pro.,  §  1757.) 

As  in  form  No.  803  to  [^],  and  from  thence  as  follows : 
To  take  proof  of  all  the  material  facts  alleged  in  the  com- 
plaint in  this  action,  and  to  report  such  proof  to  the  court 
with  my  opinion  thereon,  dnd  to  make  the  examinations 
required  by  said  order,  I,  the  subscriber,  do  hereby  certify 
and  report  as  follows  : 

That  I  have  taken  proofs  in  this  action  on  the  part  of  the 
plaintiff,  and  that  such  proofs  are  hereto  subjoined  and 
made  a  part  of  my  report. 

And  I  dc  further  certify  and  report,  as  required  by  the 
said  order,  that,  in  my  opinion,  all  the  material  facts 
alleged  in  the  complaint  in  this  acti  )n  r.re  true,  and  have 
been  sufficiently  p:A  --cd  before  me ;  and  that  the  said  de- 
fendant has  [f]  committed  tliu  several  acts  of  adultery 
alleged  in  the  said  complaint  to  have  been  committed  by 
him  [or  her]. 

'  These  provisions  may  be  pivpcrly  the  necessity  of  a  further  reference 
inserted  when  required,  r.lthou.^jh  not  upon  theso  subjects,  on  the  application 
called  for  by  the  rule,  and  will  avoid    for  final  judgment. 


Action  for  Divorce.  687 

And  I  do  further  certify  and  report,  that  I  am  of  the 
opinion  that  all  the  children  of  the  defendant  named  in  the 
said  conixjlaint  are  legitimate,  except  M.  B.,  and  ihat  said 
M.  B.  is  not  the  child  of  the  i^laintiff,  but  is  illegitiniaie. 

And  I  further  report,  that  the  plaintiff  has  been  examined 
before  me,  on  oath,  upon  such  reference,  as  to  the  matters 
and  tilings  as  to  which  said  order  directed  [his]  examination, 
and  it  has  appeared  from  [his]  said  examination  that  the 
said  acts  of  adultery  charged  were  committed  without  the 
consent,  connivance,  privity  or  iDrocurement  of  the  plaintiff, 
and  that  five  years  have  not  elapsed  since  the  discovery 
by  said  plaintiff  of  the  fact  that  such  adultery  was  com- 
mitted, and  that  the  plaintiff  has  not  voluntarily  cohabited 
with  the  defendant  since  such  discovery  ;  and  it  having  ap- 
peared that,  at  the  time  of  the  offense  charged,  the  defend- 
ant was  living  in  adulterous  intercourse  with  F.  P.,  I  further 
report  that  I  have  required  the  plaintiff  to  be  examined 
upon  oath,  as  to  whether  five  years  have  not  elapsed  since 
the  commencement  of  the  said  adulterous  intercourse  was 
discovered  by  the  plaintiff,  and  that  it  appears  from  such- 
examination  that  five  years  have  not  elapsed  since  such  dis- 
covery." 

And  I  further  report,  that  there  is  no  judgment  or  decree 
rendered  in  any  court  of  this  State  of  competent  jurisdic- 
tion against  the  plaintiff,  and  in  favor  of  the  defendant,  for 
a  divorce  upon  the  ground  of  adultery." 

[Add  report  as  to  alimony,  etc.,  if  required  by  the  order.] 

All  of  which  is  respectfully  submitted. 

Dated ,  18—. 

G.  H.,  Referee. 

Testimony  Annexed  to  Report. 

[Title  of  cause.] 

Testimony  taken  tJtls day  of ,  18 — ,  in 

the  ahone  action,,  on  the  part  and  hehalf  of  the  plaintiff ,, 
hffore  G.  H,,  Referee. 

M.  N.  appears  as  counsel  for  the  plaintiff,  no  one  appear- 
ing for  the  defendant. 

'See  rule  72  of  Gen.  Rules  of  Prac..     v.  I'.uil  (11  Stat.;  Rep.,  71). 
and  Kee  lidti;  2  to  form  No.  809  ;  (ilick         "St^;  ncc^tion  17.')7,  Code  Civ.  Pro. 
V.  Glick  (5  Month.  Law  I3ul.,  G2) ;  Paul 


688  Forms  Relating  to 

F.  P.,  being  sworn  as  a  witness  for  the  plaintiff,  deposes 

as  follows  I  here  insert  testimony]. 

F.  P. 
Subscribed  and  sworn  to  before  me, 
this day  of ,  18 — . 


I  certify  the  foregoing  to  be  the  testimony  and  other  pro- 
ceedings taken  and  had  before  me,  as  referee,  upon  the 
reference  in  the  above  entitled  action  and  referred  lo  in  my 

report  herein,  dated ,  18 — .' 

G.  H.,  Jteferee. 

No.  811. 

Final  Judgment  Dissolving  Marriage  on  Default  of  the 
Defendant,  or  where  the  Answer  does  aot  Deny  the 
Adultery. 

(Code  Civ.  Pro.,  §  1757.) 

[At,  etc.,  as  in  form  No.  80.] 

[Title  of  cause.] 

The  summons  and  complaint  in  this  action  having  beep 
personally  served  upon  the  defendant  more  than  tweniy 
days  since,  and  the  defendant  having  made  default  in  ap- 
pearing [or  in  pleading  {or  the  answer  of  defendant  not 
having  put  in  issue  the  allegations  of  adultery  made  by 
the  complaint)],  and  on  filing  the  repoi  t  of  I.  J.,  the  referee 
appointed  herein,  by  order  of  this  court  niade  and  entered 

on  the day  of ,  IS—,  which  report  bears 

date  on  the*' day  of ,  18 — ,  by  wliich  r^'port 

it  appears  that  the  material  allegations  of  the  com]  hunt  are 
true,  and  that  the  defendant  has  been  gnilty  of  the  several 
acts  of  adultery  therein  charged,  and  that  there  is  no  judg- 
ment or  decree  in  any  court  of  the  State  of  competent  juris- 
diction against  the  jjlaintiff  in  favor  of  the  defendant  foi  a 

divorce  upon  the  ground  of  adultery,  and  that ,  the 

daughter  of  the  said  defendant,  is  not  the  child  of  the  plain- 
tiff, but  is  illegitimate,  and  on  reading  [name  any  opposing 
papers],  and  on  motion  of  F.  B.  of  counsel  for  j^aid  jil.-.intiff 
[after  hearing  C.  P.  for  the  defendant  {or  due  notice  of  this 

'  See  section  1229,  Code  Civ.  Pro. 


Action  for  Divorce.  689 

application  having  been  given  to  defendant's  attorney  and 
no  one  ai^pearing  to  oppose)]  : 

It  is  adjudged  and  decreed,  [*]  and  this  court,  by  virtue 
of  the  power  and  authority  therein  vested,  and  in  pursuance 
of  the  statute  in  such  case  made  and  provided  doth  adjudge 
and  decree,  that  the  said  report  be  conhrmed  and  that  said 
marriage  between  the  said  plaintiff,  A.  B.,  and  the  said  de- 
fendant, C.  B.,  be  and  it  is  hereby  dissolved,  and  that  the 
said  parties  be  and  they  are  hereby  divorced,  and  the  said 
parties  are  and  each  of  them  is  freed  from  the  obligations 
of  said  marriage. 

And  it  is  further  adjudged  and  decreed,  that  the  said 
plaintiff  may  marrj^  again  during  the  life-time  of  the  de- 
fendant, but  the  said  defendant  shall  not  marry  again  until 
the  death  of  the  plaintiff  ;  but  the  remarriage  of  the  parties 
to  this  action  is  not  hereby  prohibited,' 

And  it  is  further  adjudged  and  decreed,  that  the  said 

,  the  daughter  of  the  said  defendant,  is  not  the  child 

of  the  plaintiff,  but  she  is  hereby  declared  to  be  illegiti- 
mate.' 

^nd   the   defendant   is   hereby  required   to  pay  to  the 

plaintiff  the  sum  of dollars  per  annum,  jmyable 

[semi-annually]  from  the  date  hereof,  for  the  support  and 

maintenance  of  the  said ,  the  son  of  the  marriage 

of  said  plaintiff  and  defendant,  until  said shall 

attain  the  age  of  twenty-one  years,  and  the  sum  of 

dollars  per  annum,  payable  [semi-annually],  for  the  support 
of  the  plaintiff,  so  long  as  she  shall  live,  and  that  he  give 

>  See  Code  Civ.  Pro.,  §  17G1,  and  see  mons  (19  Week.  Dif,'.,  234),  that  a  third 

Van  Voorhis  v.   Brintnali  (8(3  N.  Y.,  person,  not  a  parly  to  a  divorce  suit, 

18,  rev'g  S.  C,  23  Hun,  254),  Moore  cannot  intervene  or  apply  by  petition 

V.  Hegeman  (J7  Hun,   GS),  Thoi-p  v.  to   have   the   decree  vacated,   on  the 

Thorj?  (90  N.  Y.,  COJ),  that  a  j-emar-  gi-ound  of  fraud  and  colhision  in  ol)- 

riage  ■\vithoUt  the  State  is  valid,  not-  tainiiig  it.     See,  also,  Hull  v.   Hall  (ti 

withstanding  the  prohibition,  if  valid  State  11.,  92),  13ailey  v.  Bailiiy  (45  Hun, 

where  conti-acted.     See,  also,  llobei-t.s  278).    In  i-e  Faylis  estate  (22  State  R., 

V.  Ogdensburgh   &   Lake  Champlain  542),  Robertson  v.  Robertson  (9  Daly, 

R.  Co.  (Jl  W.  D.,   t;j;  S.  C,  34  Hun,  44),   Washburn    v.    Catlin    (97  N.  Y., 

324).  GJ3),    Johnson   v.    Johnson    (l2  Daly, 

Where    a    judgment    dissolving  ■  a  232),  K<!rr  v.  Kerr  (9  Daly,  517).   Fox 

marriage,  and  ijeiTnitting  the  wife  to  v.  Fox  (7  State  Rep.,  271),   Kyerson  v. 

marry  again,  is  rendered  by  a  court  of  Ryer.son  (55  Hiin,  191 ),  MoUrr  v.  Mol- 

coiinx'tent  jiii-isdiction,    in  an  action  l(;r  (115  N.  Y.,  4()G),  Rigiify  \- l^'gii''.V 

broughlliy  ii(!r,  andshemarriesagaiii,  (127    N.  Y.,  40S),    Smi.h    v.    Smith  (7 

her  second  hiisbjind  cannot  maintain  Misc.,  ;,05),    Himtley    v.   Huntley   (73 

an  action  to  liave  the  jiidginent  in  the  Him,  2()1),  Mclntynr  v.   Mclntyi-e  (0 

former  action    cancelled,  as  procunid  Misc.,  252).     Daws  of  1894,   eh.   :{78  ; 

l>y  fi-aud  and  collusion,  and  his  own  anuindJng   §    ]7()!t.    Code    Civ.    Pi-o. ; 

marriage  amiulliMl  on  tli(.'  ground  that  Matter  of  Strong  (SC.  Jlun,  ;{9()),  Mnn- 

Hhe  had  another  husliand.    (Riilger  v.  son  v.  .MnnMou((;()  id.,  IS'.i). 

Heckel,  85  N.  Y.,  483  ;  jdf'g  S.  (J  ,  21  "  See  Code  Civ.  Pro.,  §  1700,  subd.  1. 
Hun,  489.)    See,  also,  Simmons  v.  Sim- 


690 


Forms  RELAriNd  to 


security  for  the  payment  of  said  sums  to  the  clerk  of  this 

court  in  the  county  of ,  to  be  approved  by  one  of 

the  justices  of  this  court,  for  the  payment  of  said  sums. 

And  it  is  further  adjudged  and  decreed,  that  the  phiintiff 
have  the  care,  custody  and  education  of  the  said /' 

And  it  is  further  adjudged  and  decreed,  that  the  defend- 
ant pay  to  the  phdntilf,  or  lier  attorney,  the  sum  of 

dollars,  for  her  costs  in  this  action.' 

J.  L.,  Clerk. 


IS^o.  812. 

Final  Jiulgment  Dissolving  Marriage  after  the  Trial  of  a 

Feigned  Issue. 

(Code  Civ.  Pro.,  §  1757.) 

[At,  etc.,  as  in  form  No.  80.] 
[Title  of  cause.] 
The  answer  of  the  defendant  in  this  action  having  put  in 


J  See  Code  Civ.  Pro.,  §1772. 

2  The  provisions  of  2  R.  S.,  148,  §  59, 
allowing  the  modification  of  the  decree 
made  in  divorce  as  to  custody  of  the 
children,  have  no  application  to  the 
case  of  a  divorce  obtained  by  the  hus- 
band for  adultery.  (Crimminsv.  Crim- 
mins,  28  Hun,  200;  S.  C,  64  How.  Pr., 
103;  15  Week.  Dig.,  346;  see,  also. 
Code  Civ.  Pro.,  §  1771,  as  amended  by 
ch.  891  of  Laws  of  1895,  and  the  cases 
cited  in  note  1  to  form  No.  816,  'post.) 

^  For  another  form  of  judgment  of 
absolute  divorce,  see  form  No.  483;  and 
for  notice  of  motion  for  confirmation 
of  referee's  report  and  for  judgment 
thereupon,  see  forms  Nos.  480,  481. 

Insert  in  form  No.  483  the  words, 
"but  the  remarriage  of  the  parties  to 
this  action  is  not  hereby  prohibited," 
at  the  end  of  the  paragraph  relat- 
ing to  prohibitions  to  marry.  They 
should  properly  be  contained  in  the 
judgment  under  section  1761  of  Code 
Civ.  Pro.,  which  changes  the  rule 
in  that  respect  from  the  former  Re- 
vised   Statutes    (2   R.  S.,    146,    §  49, 


This  section  (49)  was  twice  amended  in 
1879  by  chapters  164  and  321,  by  which 
amendment  the  words  were  added: 
"  Unless  the  court  in  which  the  judg- 
ment of  divorce  was  rendered  shall,  in 
that  respect,  modify  such  judgmen-t, 
which  modification  shall  only  be  made 
upon  satisfactor}'  proof  that  the  com- 
plainant has  remarried,  that  five  years 
have  elapsed  since  the  decree  of  divorce 
was  rendered,  and  that  the  conduct 
of  the  defendant  since  the  dissolution 
of  said  marriage  has  been  uniformly 
good,"  and  the  provisions  were  made 
applicable  to  judgments  previously 
rendered,  the  section  standing  other- 
wise as  before  the  amendments.  As 
thus  amended,  section  49  is  still  in 
force,  not  having  been  repealed  by 
the  general  repealing  act,  chapter  245 
of  1880. 

As  to  proof  required  under  chapter 
321  of  1 879,  upon  application  for  leave 
to  marry  again,  see  Waas  v.  Waas  (5 
Month.  L.  Bui.,  50),  and  see  forms 
Nos  823,  824,  and  notes.  See,  also, 
Moore  v.  Hegeman  (92  N.  Y.,  521). 


Action  fok  Sj^pauation.  691 

issue  the  allegation  of  adultery  made  by  the  complaint,  and 
the  court  having,  by  its  order,  directed  the  trial,  by  a  jury, 
of  that  issue,  and  the  questions  to  be  tried  having  been  pre- 
pared and  settled  as  prescribed  in  section  970  of  the  Code 
of  Civil  Procedure,'  and  the  jury  empanelled  to  try  said 
feigned  issue  having  found,  by  tlieir  verdict  upon  said  trial, 
that  the  said  defendant,  C.  B.,  has  committed  the  several 
acts  of  adultery  alleged  in  the  complaint  [and  the  court 
having  tried  the  remaining  issues  of  fact  in  said  action  {or 
the  report  of ,  referee,  appointed  to  hear  and  deter- 
mine the  other  issues  of  fact  in  said  action,  hereby  been 
duly  made  in  writing  and  filed)]/  and  on  motion  of  T.  R.  of 
counsel  for  the  plaintiff,  after  hearing  H.  P.  of  counsel  for 
the  defendant : 

It  is  adjudged  and  decreed  [conclude  as  in  form  No.  811 
from  (*)].  

Article  Third. 

FORMS  RELATING  TO  ACTION  FOR  A  SEPARATION. 
(Code  Civ.  Pro.,  Ch.  15,  Tit.  1,  Art.  3.) 

No.  813.  Complaint  in  action  for  a  separation 

814.  Order  of  reference  in  action  for  a  separation. 

815.  Referee's  report  in  action  for  separation. 

816.  Final  judgment  in  action  for  separation. 

817.  Petition  by  parties  to  action  for  revocation  of  judgment. 

818.  Order  revoking  judgment  of  separation,  pursuant  to  joint  applica- 

tion of  the  parties. 


No.  813. 
Complaint  in  Action  for  a  Separation. 

(Code  Civ.  Pro.,  §  1762.) 

[Title  of  cause.] 
The  complaint  of  the  above  named  plaintiff  respectfully 

shows,  that  on  or  about  the day  of ,  18 — , 

the  plaintiff  and  defendant  were  married  at  the of 

,  ill  the  State  of  New  York,  and  that  both  plaintiff 

and  df^fendant  are  and  were,  at  the  commencement  of  this 
action,  residents  of  said  State  [or  allege  other  jurisdictional 

"  See  forms  Nos.  35^306.  'See  section   073,  Code  Civ.  Pro.; 

also,  see  notes  to  lust  form,  No.  811. 


€92  Forms  Relating  to 

facts  as  to  residence,  as  required  by  section  1763  of  the  Code 
of  Civil  Procedure]. 

That  the  plaint iif  continued  to  reside  with  the  defendant, 
as  his  wife,  until  about  the day  of ,  18 — . 

That  during  the  time  she  lived  and  cohabited  with  said 
defendant   as   aforesaid,   she   had    two    children  by  him, 

to  wit:  F.,  who  Avas  born  on  the day  of , 

18 — ,  and  is  now  of  the  age  of years  and  upwards, 

and   G.,  who  was  born   on  the  day  of , 

18 — ,  and  is  now  of  the  age  of years  and  upwards, 

and  that  during  all  that  time  she  conducted  herself  with 
propriety,  managed  the  household  affairs  of  her  said  hus- 
band with  prudence  and  economy,  and  at  all  times  treated 
her  said  husband  with  kindness  and  forbeai-ance  ;  but  that 
the  said  defendant,  disregarding  the  solemnity  of  his  mar- 
riage vow,  and  iiis  obligation  to  treat  the  plaintiff  with 
kindness  and  attention,  within  about  a  year  after  their  said 
marriage,  commenced  a  course  of  unkind,  harsh  and  tyran- 
nical conduct  tow^ards  her,  which  continued  with  very  slight 
intermissions,  until  she  finally  separated  from  him  about 
three  months  since. 

And  the  x)laintiff  further  show^s,  that  on  divers  occasions, 
while  the  said  plaintiff  lived  with  the  said  defendant,  as 
aforesaid,  he  was  guilty  of  cruel  and  inhuman  treatment  of 
her,  and  of  such  conduct  towards  her  as  rendered  it  unsafe 
and  im  proper  for  her  to  cohabit  with  him. 

That  on  or  about  the day  of ,  18 — ,  at 

the  house  No. street,  in  the  city  of , 

where  they  then  resided,  as  the  plaintiff'  was  sitting  by  the 
fire,  the  said  defendant  came  home,  and  pulled  her  chair 
from  under  her,  throwing  her  violently  upon  the  hearth, 
and  dragged  her  across  the  floor,  in  a  manner  and  under  cir- 
cumstances which  showed  an  utter  disregard  for  her  health, 
if  not  for  her  life. 

That  on  another  occasion  [specify  the  several  acts  of  cruel 
and  inhuman  treatment,  giving  thn  time  place  and  circum- 
stances of  each  act  complained  of  with  reasonable  cf^rtainty].' 

And  the  plaintiff  further  shows,  that  the  said  defendant 
is  a  man  of  violent  passions,  and  of  ungovernable  temper; 

»  See  Code  Civ.  Pro.,  §  17G4. 


Action  for  Separation.  693 

and  that  on  many  occasions,  during  the  time  the  plaintiff 
lived  with  him,  the  said  defendant  addressed  to  her  the 
most  opprobrious  epithets  and  tlireats  of  personal  violence, 
and  that  he  repeatedly  threatened  to  take  her  life,  and  that 
in  consequence  of  the  cruel  and  inhuman  treatment  above 
mentioned,  together  with  the  threats  aforesaid,  and  such 
brutal  and  outrageous  conduct  towards  her  as  rendered  it 
unsafe  for  her  to  live  with  him,  or  to  remain  within  reach 

of  his  violence,  she  was,  on  or  about  the day  of 

,  18 — ,  obliged  to  leave  the  house  of  the  said  de- 
fendant and  to  go  to  her  friends,  since  which  time  she  has 
not  dared  to  return  to  his  said  house  or  to  live  with  him. 

And  the  plaintiff  further  shows,  that  since  she  so  left  the 
house  of  the  said  defendant,  he  has  refused  to  provide  for 
her  support  and  maintenance,  and  that  she  has  been,  and  is 
now,  entirely  dependent  upon  her  own  labor  and  the  charity 
of  her  friends  for  her  support ;  that  she  is  now  very  desti- 
tute and  in  great  want,  and  that  she  is  indebted,  to  a  con- 
siderable amount,  for  board  and  necessaiy  clothing. 

And  the  plaintiff  further  shows,  that  within  about  a  year 
after  their  said  marriage,  the  said  plaintiff  received  about 

dollars  as  the  distributive  share  of  her  father's 

estate,  the  whole  of  which  the  said  defendant  has  api)lied 
and  converted  to  his  own  use  ;  and  that  the  said  defendant, 
as  plaintiff  is  informed  and  believes,  is  seized  and  possessed 
of  real  and  j)ersonal  estate  to  the  amount  of dol- 
lars, and  that  his  annual  income  is  about dollars. 

Wherefore  the  plaintiff  prays  judgment  that  the  de- 
fendant and  the  plaintiff  be  separated  from  bed  and  board 
forever,  and  that  defendant  make  a  proper  and  suitable 
provision  for  the  support  and  maintenance  of  the  plaintiff 
and  her  said  children,  and  that  plaintiff  may  have  the  care 
and  custody  of  the  said  children,  and  may  have  her  costs 
of  this  action,  and  such  other  and  further  relief  as  may 
be  just  and  proper.' 

M.  N.,  Plaintiffs  Attorney. 
[Office  address.'] 

[Verification  as  in  forms  Nos.  151,  etc.l 

'  As  to  fonipliiint  in  [iftion  for  sop-  strifkcn  out  on  motion,  hcc  Allen  v. 
aratiou,  and  what  allcguliouH  will  be     Allcu  (19  Wock.   Dig., -212),  aud  fur- 


694  Forms  Relating  to 

No.  814. 
Order  of  Reference  on  Default  in  Action  for  a  Separation. 

(Gen.  Rules  of  Prac,  No.  73.) 

[At,  etc.,  as  in  form  No.  80.] 
[Title  of  cause.] 

The  summons,  witli  a  coj)y  of  tlie  complaint  in  this  action, 
having  been  personally  served  upon  the  defendant,  more 
than  twenty  days  since,  and  the  defendant  having  made 
default  in  appearing  [or  answering] : 

Now,  on  motion  of  F.  11.  of  counsel  for  the  plaintiff  [after 
hearing  M.  P.,  counsel  for  the  defendant] : 

It  is  hereby  ordered,    that  it  be  referred  to  P.   E,.,  of 

,  to  take  proof  of  the  material  facts  alleged  in  the 

comi3laint  in  this  action,  and  that  he  make  his  report,  with 
all  convenient  speed,  and  return  the  same  with  the  evidence 
taken  by  him  upon  the  hearing  of  such  reference.' 

[Add  directions  as  to  taking  evidence  as  to  alimony,  etc., 
as  in  form  No.  809,  when  necessary.] 


No.  815. 

Referee's  Report  in  Action  for  Separation. 

As  in  form  No.  809  to  [f],  and  from  thence  as  follows: 
Has  been  guilty  of  the  cruel  and  inhuman  tieatment  of  the 
defendant,  as  alleged  in  the  complaint,  and  of  such  conduct 


ther,  as  to  what  conduct  constitutes  The   action   cannot   be   maintained 

cruel  and  inhuman  treatment  under  where  the  mai-riage  took  ]ilare  out  of 

the  statute,  see  Kennedy  v.  Kennedy  the  State,  and  the  wife  had  not  resided 

(73  N.  Y.,  3G9,  dismissing-  appeal  from  in  the  State  one  year  before  bring-mg 

S.  C,  47  N.  y.  Super.  Ct.,  5G),  Doe  v.  the  action.     (Ramsden  v.  Ramsden,  28 

Roe  (23  Hun,  19),  Ruckman  v.  Ruck-  Hun,  285  ;  aff'd  S.  C,  91  N.  Y.,  281, 

man  (58  How.   Pr.,   278),   Appleby  v.  on  other  points.)     See,  also,  Atherton 

Appleby  (2  Civ.  Pro.  Rep.  [McCarty],  v.  Atherton  (82  id.,  179). 

422),  Williams  v.  Williams  (1^0  N.  Y.,  As  to  what  is  sufficient  proof  of  the 

193),  De  Meli  v.  De  Meli  (120  id.,  485),  marriage,  see  Davis  v.  Davis  (7  Daly, 

Fowler  v.  Fowler  (33  State  Rep.,  746).  308  ;  aff'g  S.  C,  1  Abb.  N.  C,  140). 

O'Keefe  v.  O'Keefe  (34  id.,  493).  Mur-  The    continuance    of    cohabitation, 

ray  v.  Murray  (41  id.,  428),  Straus  v.  though  barring  absolute  divorce,  is  not 

Straus  (67  Hun,  491),  Adams  v.  Adams  conclusive  against  plaintiff,  in  action 

(49  State  Rep.,  641),  McCahill  v.  Mc-  for    limited    divorce.        Reynolds   v. 

Cahill  (71  Hun,  224),  Burke  v.  Burke  Revnolds  (4  Abb.  Ct.  of  App.  Dec,  35). 

(75  id  ,  412),  Taylor  v.  Taylor  (74  id.,  ^  See  note  2  to  form  No.  122. 

639),  Woodi-ick  v.  Woodrick  (141    N.  '  As  to  what  proof  will  be  required 

Y.,   457),     Atherton    v.    Atherton    (82  on  application  for  order  of  i-eference, 

Hun,  179).  Anonvmous  (17  Abb.  N.  C,  and  who  will  be  appointed  referee,  see 

'>31),   McBride   v.    McBride  (5  N.  Y.  Gen.  Rules  of  Prac,  No.  72;  Ives  v. 

Supp.,  68).  I\-es  (80  Hun,  136). 


Action  for  Separation.  695 

towards  her  as  to  render  it  unsafe  and  improi)er  for  lier  to 
cohabit  with  him. 

Dated ,  18—. 

R.  F.,  Referee. 

[Add  testimony  and  certificate  thereto  as  in  form  JSTo.  809.] 


N'o.  816. 
Final  Judgment  in  Action  for  Separation, 

(Code  Civ.  Pro.,  §  1766.) 

[At,  etc.,  as  in  form  No.  80.] 
[Title  of  cause.] 

The  summons,  with  a  copy  of  the  complaint  in  this  action, 
having  been  personally  served  upon  the  defendant,  more 
than  twenty  days  since,  and  the  defendant  having  made 
default  in   appearing  \or  in   answering],  and  the  report, 

dated  ,  18 — ,  of  F.  M.,  the  referee  duly  appointed 

herein,  by  order  of  this  court,  made  and  entered  on   the 

day  of ,  18 — ,  having  been  dulj-  made  and 

filed,  and  it  appearing  to  the  court  that  the  defendant  has 
been  guilty  of  cruel  and  inhuman  treatment  of  the  plaintiff 
and  of  such  conduct  towards  her  as  to  render  it  unsafe  and 
improper  for  her  to  cohabit  with  him  : 

Now,  on  motion  of  P.  R.  of  counsel  for  the  plaintiff,  and 
after  hearing  F.  G.  of  counsel  for  the  defendant  {or  due 
notice  of  this  application  having  been  served  upon  the  at- 
torney for  the  defendant,  and  no  one  appearing  to  oppose] : 

It  is  ordered,  adjudged  and  decreed,  and  this  court,  by 
virtue  of  its  power  and  authority  and  of  the  statute  in  such 
case  made  and  provided,  doth  order,  adjudge  and  decree, 
that  the  said  plaintiff  and  defendant  be  and  they  are  hereby 
separated  from  bed  and  l)oard  forever  ;  provided,  however, 
that  the  said  parties  may,  at  any  time  hereafter,  by  their 
joint  petition,  apply  to  this  court  to  have  this  judgment 
modified  or  discharged  ;  and  that  neither  of  the  said  i)aities 
shall  be  at  liberty  to  marry  any  other  person  during  th<'life 
of  the  other  l)arty. 

And  it  is  further  ordeivd  and  decreed,  that  tlie  defendant 
pay  to  the  ])laintiff  the  sum  of dollars  .})er  annum 


696 


Forms  Relatiistg  to 


from  the  date  of  this  judgment,  in  semi-annual  payments, 
for  the  support  and  maintenance  of  the  plaintiff  and  the 
children  of  the  marriage  named  in  the  said  comi^laint,  and 
that  he  give  security  to  the  clerk  of  this  court  in  the  county 

of ,  to  be  approved  by  a  judge  of  this  court,  for  the 

payment  thereof. 

And  it  is  further  ordered  and  adjudged,  that  the  said 
plaintiff  have  the  care,  custody  and  education  of  the  said 
children  of  the  marriage,  until  the  further  order  of  this 
court. 

And  it  is  further  ordered  and  adjudged,  that  the  defend- 
ant pay  to  the  said  plaintiff,  or  her  attorney, dol- 
lars as  the  costs  of  this  suit,  and  that  she  have  execution 
therefor, ' 


No.  817. 

Petition  by  Parties  to  Action  for  Separation  for  Revoca- 
tion of  Judgment. 

(Code  Civ.  Pro.,  §  1767,) 

[Title  of  cause.] 

To  the Court : 

The  petition  of  A.  B.  and  C.  D.  respectfully  shows  to  this 


'  For  another  form  of  judgment  of 
separation,  see  form  No.  482,  and  for 
notice  of  motion  for  confirmation  of 
referee's  report,  etc.,  see  foniis  Nos. 
480,  481. 

The  court  has  no  power,  after  the 
entry  of  a  decree  of  separation  con- 
taining no  provisions  for  alimony,  to 
make  an  order  directing  its  payment. 
But  under  2  R.  S.,  147,  §  59,  the  court 
might  make  an  order  providing  for  the 
support  and  education  of  the  children 
after  the  entry  of  a  judgment  making- 
no  provision  therefor.  (Erkenbrach  v. 
Erkenhi-ach,  20  Week.  Dig.,  4  ;  S.  C, 
96  N.  Y.  4.36 ;  aff'g-  S.  C,  18  Week. 
Dig.,  444.) 

Th-at  section  is  still  in  force,  having- 
been  preserved  by  section  3  of  chapter 
245,  Laws  of  ISSO.  (Washburn  v.  Cat- 
lin,  20  Week.  Dig.,  12  ;  S.  C,  97  N.  Y., 
623  ;  modifying  S.  C,  18  Week.  Dig., 
442.) 

See,  also.  Code  Civ.  Pro.,  §  1771. 

See,  also,  cases  cited  in  note  1  to 
form  No.  8l9  (post),  and  see  Chamber- 
lain V.  Chamberlain  ^63  Hun,  96),  San- 


ford  V.  Sanford  (42  State  Rep..  1),  Mc- 
Bride  v.  McBride  (119  N.  Y.,  519), 
Romaine  v.  Chauncey  (129  N.  Y.,  566). 

The  court  denying  a  sejiaration  to 
the  wife  cannot,  imder  2  R.  S.,  174, 
§  55  (see  Code  Civ.  Pro.,  §  1766),  give 
judgment  awarding  the  custody  of  the 
children  to  her  and  pi-ovide  for  their 
maintenance  l)y  the  husband.  (Davis- 
V.  Davis,  75  N.  Y.,  221.) 

Upon  failure  of  the  plaintiff  to  make 
out  a  case  for  a  divorce  the  defendant 
is  entitled  to  judgment  dismissing-  the 
comjilaint.     (Id.) 

It  seems,  that  where  a  husband  and. 
wife  live  separate,  without  being-  di- 
vorced, the  remedy  of  the  wife  seeking- 
cu.stody  of  the  minor  children  is  by 
habeas  corpus,  under  2  R.  S.,  149, 
§§  1,  2.  (Id.)  By  section  40  of  the 
domestic  relations  law,  ch.  292  of 
Laws  of  1896,  pro^^.';ions  are  made 
for  application  for  habeas  corpus  for 
child  detained  by  parent,  and  by  the 
same  act  the  last  mentioned  sections, 
1  and  2,  are  repealed.  That  chapter 
takes  effect  October  1,  1896. 


Action  for  Sepaeation.  697 

court,  that  heretofore,  and  on  or  about  the day  of 

,  a  final  judgment  was  rendered  in  the  above  enti- 
tled action,  a  copy  of  which  is  hereto  annexed,  by  which, 
among  other  things,  your  petitioners,  the  plaintiff  and  de- 
fendant, were  separated  from  bed  and  board  forever. 

That,  since  the  rendition  of  the  said  judgment,  your  peti- 
tioners have  become  reconciled,  and  have  been,  for 

months,  living  together  as  husband  and  wife  [or  state  other 
facts  showing  reconcilation],  and  they  pray  that  this  court 
will  revoke  the  said  judgment,  subject  to  such  regulations 
and  restrictions  as  the  court  may  see  fit  to  impose,  accord- 
ing to  the  statute  in  such  case  made  and  provided. 


[Verification  by  both  parties  as  in  form  No.  62.] 


A.  B. 
C.  D. 


No.  818. 

Order  Revoking  Judgment  of  Separation  Pursuant  to  Joint 
Application  of  the  Parties. 

(Code  Civ.  Pro.,  g  1767.) 

[At,  etc.,  as  in  form  No.  80.] 
[Title  of  cause.] 

On  reading  and  filing  the  petition  of  the  parties  to  the 
above  entitled  action,  dated ,  18 — ,  by  which  it  ap- 
pears  that  since   the  rendition  of  the  judgment,  entered 

herein  on  the day  of ,  18—,  separating  the 

parties  from  bed  and  board  forever,  the  plaintiff  and  de- 
fendant have  become  reconciled,  and  said  i)etition  having 
been  accompanied  with  due  and  satisfactory  evidence  of 
their  said  reconciliation : 

It  is  hereby  ordered,  on  motion  of  E.  F.,  of  counsel  for 
said  plaintiff  and  defendant,  that  tlie  said  judgment  be  and 
the  same  is  hereby  revoked,  subject  to  the  following  regu- 
lations and  restrictions  [here  insert  same]. 
88 


698  Fomis  Rklatino  to 


Article  Fourth. 

forms  relating  to  general  provisions  of  code  op  civil 
i^roceduke  in  reference  to  matrimonial  actions. 

(Code  Civ.  Pro.,  Ch.  15,  Tit.  1,  Art.  4.) 

No.  819.  Petition  for  alimony  and  expenses  in  action  for  divorce  or  separation. 

820.  Order  of  reference  as  to  alimony  and  expenses. 

821  Report  of  referee  as  to  alimony,  etc. 

822.  Order  awarding  alimony,  etc.,  on  report  of  referee. 

823.  Alliilavit  on  application  for  leave  to  marry  again. 

824.  Order  modifying  judgment  so  as  to  allow  marriage  of  defendant. 

825.  Notice  of  application  for  sequestration  of  property-  and  api)()in1nient 

of  receiver. 

826.  Allitlavil   ti^  obtain  sequestration  of  property  on  failure  to  comply 

with  order  or  judgment  directing  payment  of  alimony,  etc. 

827.  Order  sequestrating  property  of  defendant  and  appointing  receiver. 

828.  Indorsement  on  summons  in  matrimonial  actions  where  complaint 

is  not  served. 

829.  Affidavit  of  service  of  summons  within  the  State,  or  of  the  sum- 

mons and  complaint  without  the  State,  in  suit  for  divorce  or  sepa- 
ration, or  to  annul  a  marriage. 

830.  Affidavit  to  move  for  order  to  show^  cause  why  husband  should  not 

make  paj'ment  of  alimony. 

831.  Order  to  show  cause  why  the  defendant  should  not  be  punished  for 

his  failure  to  make  the  payment. 


No.  819. 

Petition  for  Alimony  and  Expenses  in  Action  for  Divorce 
or  Separation. 

(Code  Civ.  Pro.,  §  1769.) 

[Title  of  cause.] 
To  the Court : 

The  petition  of  the  above  named  plaintiff  respectfully 
shows,  that  the  above  entitled  action  has  been  commenced 
for  the  purpose  of  obtaining  a  divorce  from  the  defendant, 
and  a  dissolution  of  the  marriage  between  the  plaintiff  and 
defendant  \or  state  other  j^urpose  of  the  action],  because  of 
the  alleged  adultery  \or  state  other  cause]  of  the  defendant. 

Tliat  the  defendant  has  answered  the  complaint,  denying 
the  said  adultery  \or  other  alleged  cause],  with  which  he  is 
charged  in  the  said  complaint,  and  setting  up  other  matters 
of  defense,  as  will  more  fully  appear  by  reference  to  the 
said  answer. 


Matrimonial  Actiojs^s  Generally.  699 

And  your  petitioner  further  shows,  that  she  is  wholly 
destitute  of  the  means  of  sui^porting  herself  during  the 
pendency  of  the  action,  or  of  carrying  on  the  said  action 
and  defraying  the  expenses  attending  the  same. 

That  your  petitioner  has  been  informed,  and  believes,  that 
the  said  defendant  has  real  estate  and  personal  property  to 
a  large  amount,  and  amj)ly  sufficient  to  enable  him  to  ad- 
vance thereout,  to  your  petitioner,  such  sums  as  may  be 
necessary  for  the  purposes  above  mentioned. 

That  your  petitioner  is  informed,  and  believes,  that  the 
said  defendant  is  the  owner  of  property  to  the  amount  of 

dollars,  and  that  his  annual  income  is  about 

dollars. 

That  the  children  of  the  said  marriage,  to  wit  [state  names 
and  ages],  are  living  with  the  plaintiff,  and  that  plaintiff 
has  no  means  to  provide  for  their  maintenance  and  edu- 
cation. 

Your  petitioner,  therefore,  prays  that  the  said  defendant 
may,  by  an  order  of  this  court,  be  required  to  j)ay  to  your 
petitioner  a  reasonable  sum  for  her  support  and  mainte- 
nance during  the  pendency  of  this  action,  and  such  sum  or 
sums  of  money  as  may  be  necessary  to  enable  your  peti- 
tioner to  carry  on  her  defense  in  this  action,  and  to  defray 
the  necessary  costs  and  expenses  thereof,  and  to  provide 
suitably  for  the  education  and  maintenance  of  the  children 
of  said  marriage,  and  for  such  other  or  further  relief  in  the 
premises  as  may  be  just.' 

Dated ,  18—. 

M.  B. 

[Verification  as  in  form  No.  52.] 

'  With  slight  changes,  this  may  be  living  at  the  time  of  his  marriage  with 
made  to  answer  for  a  petition  where  her,  to  make  an  order  allowing  the 
the  wife  is  defendant.  wife  a  counsel  foe  and  alimony  pen- 
See  Winton  v.  Winton  (31  Hun,  290),  de7ite  lite.  (O'Dea  v.  O'Dea,  31  Hun, 
overruling  Anonymous  (If)  Abb.  [N.S.]  441  ;  S.  C,  18  Week.  Dig.,  377  ;  citing 
307),  that  the  court  has  no  power,  after  Griffin  v.  Griffin,  47  N.  Y.,  134,130; 
judgment  in  favor  of  the  wife  in  an  Brinkley  v.  Brinkley,  50  N.  Y.,  184.) 
action  for  separation,  to  retjuirc  th(;  An  order  cannot  be  made  granting 
hu.sband  to  paya  sum  of  moiK^y  to  her  alimony  to  the  wifo  after  tlie  decree 
attorney  for  services  rendered,  or  to  be  has  been  made;,  in  an  action  for  sepa- 
rendered,  in  the  action ;  nor  does  the  ration,  not  providing  therefor;  but 
fact  that  an  appeal  is  pending  to  the  imder  2  R.  S.,  147,  §  59,  an  order  may 
Court  of  Appeals  from  the  judgment  be  made  after  decree,  which  did  not 
of  the  General  Tei-m,  affirming  such  i)rovide  for  the  support,  etc.,  of  the 
judgment,  authorizi;  such  order.  But  (children,  making  provision  for  such 
see  McBride  v.  Mc.Bnde  (119  N.  Y.,  supj)ort.  (Krkcnhrach  v.  iM-kcnbrach, 
519,  55  Hun,  401).  20  Wecik.  Dig.,  4  [Ct.' of  Aj))!.];  9(;  N. 
The  court  has  power,  in  an  action  Y.,  450;  alf'g  S.  C,  IS  Week.  Dig., 
brought  by  the  huslmnd  to  have  his  444.)  Set!  McHride  v.  M<'IJrido  (119 
marriage  declaretl  void  on  the  ground  N.  Y.,  519). 
that   tlie  wife's  former  husband   was  The  same  rule,  was  held  as  to  tlio 


700 


FoKMS  Relating  to 


No.  820. 
Order  of  Reference  as  to  Alimony  and  Expenses. 

(Code  Civ.  Pro.,  ti  1769.) 

[Title  of  cause.] 

On  reading  and  filing  the  petition  of  the  plaintiff,  duly 

verified,  and  dated  the day  of ,  18 — ,  and 

the  affidavits  accompanying  the  same,  with  proof  of  due 
service,  etc.,  and  on  reading  [name  opposing  papers],  and 
on  motion  of  W.  M.,  counsel  for  the  petitioner,  after  hear- 
ing H.  F.  for  the  defendant  in  opposition  thereto : 

It  is  hereby  ordered,  that  it  be  referred  to  F.  P.,  of , 

to  inquire  and  report  what  would  be  a  reasonable  sum  to  be 
allowed  to  the  said  plaintiff  for  her  support  and  mainte- 
nance, and  for  the  maintenance  and  education  of  the  chil- 
dren of  said  marriage,  mentioned  in  the  said  petition. 

And  it  is  further  ordered,  that  the  said  referee  inquire 
and  report  what  would  be  a  reasonable  sum  to  be  allowed 
to  said  plaintiff  to  enable  her  to  carry  on  the  said  action, 
and  to  defray  the  necessary  costs  and  expenses  thereof  ;  and 


support  of  children,  in  an  action  for 
absolute  divorce,  by  the  Court  of  Ap- 
peals in  Washburn  v.  Catlin  (20  Week. 
Dig-.,  12;  97  N.  Y.,  623;  att'g-  S.  C, 
18  Week.  Dig.,  442);  and  see  Catlin  v. 
Catlin  (31  Hun,  632). 

As  to  the  granting-  of  alimony  in  ac- 
tions for  separation  and  absolute  di- 
vorce, see  Collins  V.  Collins  (71  N.  Y., 
269,  rev'g  S.  C,  10  Hun,  272),  Collins 
V.  Collins  (SO  N.  Y.,  1),  Kennedy  v. 
Kennedy  (73id.,  369),  Kinzey  v.  Kinzey 
(7  Daly,  460) ;  Starkweather  v.  Stark- 
weather (29  Hun,  488).  Jacobson  v. 
Jacobson(12  Civ.  Pro.  R.,  198),  Beach 
v.  Beach  (29  Ilun,  181),  Galusha  v. 
Galusha  (116  N.  Y.,  635),  Moriarty  v. 
Moriarty  (32  State  Rep.,  ll.o),  Simonds 
v.  Simonds  (.57  Hun.  290),  Rublinsky 
V.  Rublinskv  (24  N.  Y.  Supp.,  920), 
Walsh  V.  Walsh  (4  Misc.,  448),  Frickel 
V.  Frickel  (id.,  382),  Bhnks  v.  Blinks 
(5  id.,  193),  Bucki  v.  Bucki  (54  State 
Rep..  287),  Lowenthal  v.  Lowenthal 
(68  Hun.  366),  Galusha  v.  Galusha 
(138  N.  Y.,  272),  Grav  v.  Gray  (143 
N.  Y..  354).  Aldrich  v.  Aldrich  (74 
Hun,  638),  Dailey  v.  Dailev  (9  Misc.. 
511),  Gray  v.  Grav  (78  Hun,  610), 
Shaw  v.  Shaw  (26  N.  Y.  Supp..  715), 
Emerson  v.  Emerson  (26  N.  Y.  Supp., 
291),  Mercer  v.  Mercer  (73  Hun,  192), 
McCarthv  v.  McCarthv  (143  N.  Y., 
235),  Wetmore  v.  Wetiiiore  (79  Hun, 
2*^8),  Atherton  v.  Atherton  (82  Hun, 
179).  Thr.'dl  v.  Thrall  (S3  id.,  188). 
Cohen  v.  Cohen  (1 1  Misc.,  704),  Halsted 


V.  Halsted  (id.,  592),  McBride  v.  Mc- 
Bride  (53  Hun,.  448).  In  actions  to 
annul  marriage  for  physical  incapac- 
ity, etc.,  see  Allen  v.  Allen  (8  Abb.  N. 
C,  175),  Bloodgood  v.  Bloodgood  (59 
How.  Pr.,  27),  Meo  v.  Meo  (22  Abb. 
N.  C,  58),  Lee  v.  Lee  (4  Civ.  Pro.  R., 
321).  As  to  allowance  of  counsel  fee, 
etc.,  in  action  for  limited  divorce,  see 
Bertschy  v.  Bertschy  (14  Week.  Dig., 
Ill),  citing  Douglas  v.  Douglas  (13 
Abb.  [N.  S.],  291)  ;  and  see  also 
Browne  v.  BrowTie  (9  Civ.  Pro.  R., 
180),  Desbrough  v.  Desbrough  (29 
Hun,  192),  Brennan  v.  Bi-ennan  (19 
Week.  Dig.,  342),  Beadleston  v.  Bea- 
dleston  (103  N.  Y.,  402),  Chase  v. 
Chase  (29  Hun,  527),  Maxwell  v.  Max- 
well (28  id.,  566),  Uhlman  v.  Uhlman 
(51  Super.  Ct.,  361),  Waring  v.  War- 
ing (100  N.  Y.,  570.  aff'g  S.  C,  31 
Hun,  169),  Williams  v.  Willi.ams  (6  N. 
Y.  Supp.,  645),  Pountney  v.  Pountney 
(32  State  Rep.,  335),  Ober  v.  Ober  (28 
id.,  23),  Strauss  v.  Strauss  (38  id.,  478), 
Stahl  V.  Stahl  (36  id.,  228),  Percival  v. 
Percival  (124  N.  Y.,  637),  Rudolph  v. 
Rudolph  (34  State  Rep.,  1),  Van  Wor- 
mer  v.  Van  Wormer  (33  id.,  31),  Pet- 
tee  v.  Pettee  (45  id.,  649),  Vincent  v. 
Vincent  (16  Daly,  534),  Kirsch  v. 
Kirsch  (45  State  Rep.,  287),  Scragg  v. 
Scragg  (44  id.,  345),  Sigel  v.  Sigel  (28 
Abb.  N.  C,  308),  Chamberlain  v. 
Chamberlain  (63  Hun,  96),  Sanfoi-d  v. 
Sanford  (42  Slate  Pop..  1).  :McCarthy 
v.  McCarthy  (l.'w  N.  Y.,  500). 


Matkimonial  Actions  Generally.  701 

that  the  said  referee  report  as  to  the  times  and  manner  la 
which  the  said  sums  should  be  paid  by  the  defendant.* 


No.  821, 
Report  of  Referee  as  to  Alimony,  etc. 

(Code  Civ.  Pro.,  §  1769.) 

[Title  of  cause.] 

I,  the  undersigned,  referee  appointed  in  this  action  by 

order  of  this  court,  made  and  entered  on  the day 

of ,  18 — ,  do  respectfully  report : 

That  having  been  attended  by  the  attorneys  for  the  re- 
spective parties,  I  have  i^roceeded  to  a  hearing  of  their 
proofs  and  allegations  regarding  the  matters  so  referred  to 
me,  and  find  as  follows  : 

That  it  has  appeared  upon  such  hearing  that  the  defend- 
ant has  the  following  real  and  personal  property,  to  wit :  a 

house  and  lot  situated  on street,  in  the  city  of 

,  which  is  of  the  value  of dollars,  and  the 

annual  rents  and  profits  of  which  are dollars  [in  like 

manner  describe  other  real  j^roperty,  stating  any  incum- 
brances thereon]. 

That  it  has  also  appeared  that  the  said  defendant  is  the 
owner  of  the  following  personal  property  [describe  same], 
and  that  the  value  thereof  is  about  the  sum  of dollars. 

I  also  report  that  the  children  of  said  plaintiff  and  de- 
fendant, to  wit:  T.  B.,  aged years,  and  H.  B.,  aged 

years,  both  reside  with  the  plaintiff. 

And  I  further  report,  that,  in  my  opinion,  the  sum  of 
dollars   per  month  would  be  a  reasonable   and 


proper  allowance  to  be  paid  by  the  defendant  to  the  plain- 
tiff for  her  support  and  maintenance  and  the  maintenance 
and  education  of  said  children  during  the  pendency  of  this 
action,  and  that  said  amount  should  be  paid  toiler  [monthly] 

from  tlie  date  of  said  order,  and -that  the  sum  of 

dollars  would  be  a  proper  sum  to  be  allowed  the  plaintiff 
to  enable  her  to  carry  on  this  action. - 
All  of  which  is  respectfully  submitted. 

Dated ,  18—. 

Tl.  M.,  Referee. 

For  non-payment  of  temporary  ali-  appointment  of  receiver,   we  §  177U, 

mony  the  (lefendaiit'H  answer  may  bo  Code  Civ.   Pro.;    for  ]ir()<-(!ediiif,'s   for 

•ftiioken  out,   and  a  notice  of  motion  (•oiitem|)t,  nee  §  1773  id.,    and   formn 

for  that   ])urpose  may  he  H-rved  iii>oii  niider  title  :{  of  i-li:i|iler  17.  iil.;  and  ne« 

hin  attorney.      Walker  v.   Walker,  HJ  liv.-r  v.  Ryrr  (111  W.-rk.  DiK"..  :!"'S). 
N.  Y.,  2TO  ;  aff'f,'  S.  C,  20  Hun,  400.)  '  See  (ierard  v.  (uM-ard  (2  IJarhCh., 

As  to  sequeatration  of  property  an<l  73);  and  see  notcH  to  last  form  No.  819. 


702  FoiiMS  Ekla'J'ing  to 

No.  822. 
Order  Awsirding  Alimony,  etc.,  on  Report  of  Referee, 

(Code  Civ.  Pro.,  §  17G9.) 

At,  etc.,  as  in  I'orm  No.  80.] 
[Title  of  cause.] 

On  reading  and  filing  the  report  of ,  referee,  ap- 
pointed by  order  of  this  court,  dated  ,  18 — ,  with 

proof  of  due  service  of  a  copy  thereof,  with  notice  of  this 
motion,  on  the  defendant's  attorney,  and  on  reading  [name 
any  opposing  papers] : 

It  is  hereby  ordered,  on  motion  of  F.  G.  for  the  plaintiff* 
after  hearing  G.  H.  for  the  defendant  \or  no  one  appearing 
to  oppose],  that  said  report  be  and  the  same  is  hereby  con- 
firmed, and  that  the  plaintiff  pay  to  the  defendant  [direc- 
tions for  imynient  as  in  report,  form  No.  821.] 


No.  823. 
Affidavit  on  Application  for  Leave  to  Marry  Again. 

(Laws  of  1879,  chap.  321.) 

[Title  of  cause.] 
County,  ss.  : 


A.  B.,  of ,  being  duly  sworn,  says,  that  he  is  the 

defendant  in  the  above  entitled  action. 

That  plaintiff  and  defendant  were  married  on  the  — ■ 

day  of ,  18 — . 

That  said  action  was  brought,  on  the day  of 

-,  18 — ,  for  a  divorce,  on  the  ground  of  the  adultery 


of  the  defendant. 

That  a  judgment  was  rendered  therein,  on  the 

day  of ,  18 — ,  dissolving  the  said  marriage  contract, 

and  directing,  among  other  things,  that  the  said  plaintiff 
might  marry  iignin  during  the  life-time  of  the  defendant ; 
but  that  the  defendant  should  not  marry  again  until  the 
death  of  the  plaintiff,  as  will  appear  from  the  copy  of  said 
judgment,  which  is  hereto  annexed,  marked  A. 

That  on  the day  of ,  18 — ,  the  said  plain- 
tiff intermarried  with  one  G.  J. 


Matrimonial  Actions  Generally.  703 

That  the  conduct  of  the  defendant,  since  the  dissolution 
of  the  said  marriage,  has  been  uniformly  good,  as  will  ap- 
pear b}'  the  annexed  affidavits  of  M.  F.  and  K.  P. 

And  deponent  states  that  he  is  desirous  of  contracting  a 
remarriage  and  asks  that  the  said  judgment  of  divorce  may- 
be modified  so  as  to  permit  him  to  marry  again  during  the 
plaintiff's  life-time.' 

[That  no  previous  application  has  been  made  for  such 
modification.'] 


[Jurat  as  in  form  No.  46.] 


A.  B. 


No.  824. 

Order  Modifying  Judgment  so  as  to  Allow  Marriage  of 
Defendant  Dnring  Plaintiff's  Life-Time. 

(Laws  of  1879,  chap.  321.) 

[At,  etc.,  as  in  form  No.  80.] 
[Title  of  cause.] 

On  reading  and  filing  affidavits  of  A.  B.,  C.  D.  and  E.  F., 

dated ,  18 —  [with  proof  of  due  service  thereof,  with 

notice  of  this  motion  on  the  defendant's  attorney],'  and  on 
reading  [name  opposing  papers],  and  on  motion  of  A.  M., 
for  the  defendant  [after  hearing  P.  F.,  for  the  plaintiff,  in 
opposition  thereto  {or  no  one  appearing  to  oppose)],  and 
five  years  having  elapsed  since  the  decree  was  entered  herein 
dissolving  the  marriage  between  the  plaintiff  and  the  de- 
fendant, and  the  court  being  satisfied  that  the  plaintiff  has 
married  again,  and  that  the  conduct  of  the  defendant  has 
been  uniformly  good  since  the  dissolution  of  the  said  mar- 
riage :  [*] 

It  is  hereby  ordered,  pursuant  to  stir-ite,  that  the  said 
decree  herein,  entered  on  the day  of ,  18 — , 

•  Leave  shall  not  be  granted  to  re-  ^  Insert  these  words  in  brackets  if 

marry,  except  upon  full  disclosure  and  the  application  is  made  cv  parti;  under 

satisfactory  proof.     (Waas  v.  Wass,  5  rule  25  o'f  Gen.  Rules  of  Practice.    See 

Mouth.  L.  Bui  ,  59.)  note  2  to  form  No.  209. 

See,  also,  Matter  of  Greene  (8  Abb.  ^  No  notice  is  rccjuired  by  the  act 

N.  C,  450),  Moore  v.  Moore  (8  Abb.  N.  to  be  given  of  the  application. 
C,  171.) 


704  Forms  Relating  to 

be  modified,  so  as  to  permit  the  remarriage  of  the  said  de- 
fendant with  any  person  during  the  life- time  of  the  plaintiff. 
[Or  a  reference  may  be  ordered  as  to  the  facts.] 


No.  825. 

Notice  of  Application  for  Sequestration  of  Property,  and 
Appointment  of  Receiver. 

(Code  Civ.  Pro.,  §  1772.) 

[Title  of  cause.] 

As  in  form  No.  324  to  [*],  and  from  thence  as  follows : 
For  an  order  sequestrating  the  personal  property  of  the  de- 
fendant, and  the  rents  and  profits  of  his  real  property,  and 

appointing  R.  F.,  of ,  or  some  other  suitable  person, 

receiver  thereof,  and  for  such  other  and  further  relief  aa 
may  be  just,  with  costs  of  this  motion. 
Yours,  etc., 

M.  N".,  Plaintiff's  Attorney, 
[Office  address.'] 
To  P.  R.,  Defendant' s  Attorney. 


No.  826. 

Affidavit  to  Obtain  Sequestration  of  Property  on  Failure 
to  Comply  with  Order  or  Judgment  Directing  Payment 
of  Alimony,  etc. 

(Code  Civ.  Pro.,  §1772.) 

[Title  of  cause.] 
County  of ,  55.; 

A.  B.,  of ,  being  duly  sworn,  says,  that  she  is  the 

plaintiff  in  the  above  entitled  action. 

That  said  action  was  brought  to  obtain  a  divorce  from  the 
defendant  and  a  dissolution  of  the  marriage  between  the 
plaintiff  and  defendant  \or  state  other  relief],  and  for  other 
relief,  as  will  appear  by  the  complaint  therein. 

That  upon  the  application  of  the  plaintiff  an  order  was 
made  and  entered  herein  \or  that  a  final  judgment  was  en- 

'  See  note  3  to  form  No.  132. 


Matrimonial  Actions  Generally.  705 

tered  herein],  on  the day  of ,  18 — ,  a  copy 

of  which  is  hereto  annexed. 

And  deponent  further  says,  that  the  said  defendant  has 
not  complied  with  the  directions  oi  said  order  [or  judgment] 

in  that  he  has  failed  to  pay  the  amount  of dol 

lars,  directed  thereby  to  be  paid,  on  tlie day  of 

,   18 — ,   for  the  support   and  maintenance  of   the 

plaintiff  [or  state  other  violation  of  the  order  or  judgment], 
although  a  copy  of  said  order  [o?'  judgment],  certified  by 

the  clerk  of county,  was  duly  served  upon  the  said 

defendant,  on  the  day  of ,  18 — ,  as  will 

appear  by  the  affidavit  of ,  hereto  annexed. 

That  the  defendant  is  the  owner  of  both  real  and  personal 
property,  the  value  of  which  is  about dollars. 

A.  B. 

[Jurat  as  in  form  No.  46.] 


No.  827. 

Order  Sequestrating  Property  of  Befeudant  and  Appoint- 
ing Receiver. 

(Code  Civ.  Pro.,  §  1773.) 

[At,  etc.,  as  in  form  No.  80.] 
[Title  of  cause.] 

On  reading  and  filing  the  affidavit  of  A.  B.,  dated , 

18 — ,  with  proof  of  due  service  thereof,  and  of  notice  of  this 
motion,  upon  the  [defendant's  attorney]  herein,  and  it  ap- 
pearing that  said  defendant  has  failed  to  comply  with  the 
directions  of  the  judgment  [or  order]  entered  herein  on  the 

day  of ,  18 — ,  and  to  [state  in  what  manner 

he  has  failed  to  comply  with  such  directions],  and  on  read- 
ing [name  any  opposing  pnpers] : 

Now,  on  motion  of  F.  G.,  for  the  plaintiff,  after  hearing 
G.  H.,  for  the  defendant  [or  no  one  appearing  to  oppose] : 

It  is  hereby  ordered,  that  T.  E-.,  of ,  be  and  he  is 

hereby  appointed  receiver  of  the  personal  property  of  the 
defendant,  C.  D.,  and  of  the  rents  and  profits  of  tlie  real 
estate  of  said  defend;in(,  which  are  hereby  sequestered, 
pursuant  to  the  provisions  of  section  1772  of  the  Code  of 
89 


706  Forms  Relating  to 

Civil  Procedure,  upon  the  said  receiver's  executing,  ac- 
knowledging and  filing,  with  the  clerk  of  this  court,  a  bond 
in  the  form  required  by  law,  to  the  people  of  this  State,  in 

the  penalty  of dollars,  with  two  sufficient  sureties, 

to  be  approved  as  to  its  form  and  manner  of  execution  by 
[a]  judge  of  this  court. 

And  It  is  further  ordered,  that  said  receiver  take  the  said 
rents  and  profits,  and  other  property  so  sequestered,  and 
apply  them,  from  time  to  time,  to  the  payment  oi  any  of 
the  sums  of  money  hereinbefore  specified,  under  the  direc- 
tions of  this  court,  as  justice  may  require. 

[Add  injunction  against  defendant,  substantially  as  in 
form  No.  292.] 

And  that  the  said  defendant  pay  to  the  plaintiff 

dollars  costs  of  this  motion.' 


No.  828. 

Indorsement  on  Summons  in  Matrimonial  Actions^  where 
Complaint  is  not.  Served. 

(Code  Civ.  Pro.,  g  1774.) 

Legibly  written  or  printed  upon  the  face  thereof  as  fol- 
lows : 

"Action  to  annul  marriage,"  "Action  for  divorce,"  or 
"Action  for  a  separation,"  according  to  the  article  of  title  1 
of  chapter  15,  under  which  the  action  is  brought. 


No.  829. 

Affidavit  of  Service  of  Summons  within  the  State,  or  of 
the  Summons  and  Complaint  without  the  State,  in  Suit 
for  Divorce  or  Separation,  or  to  Annul  a  Marriage. 

(Code  Civ.  Pro  ,  §  1774;  Gen.  Rules  of  Prac,  No.  18.) 

County,  ss.  : 

E.  F.,  of ,  being  duly  sworn,  says,  that  he  is  of 

the  age  of  eighteen  years  and  upwards  [or  that  he  is  and 

'  For  bond  of  I'eceiver,  see  form  No.  equity  has,  it  seems,  no  jurisdiction  to 

302,  and  sec  other  form.s  relating'  to  re-  sequestrate   defendant's  property  or 

ceivers,  contained  in  article  1  of  title  4  compel  him  to  give  security  for  future 

of  chapter?,  commencing  on  page  208.  alimony,  see  Wood  v.  Wood,  (7  Misc., 

That  in  an  action  upon  a  foreign  579).    No  other  relief  can  be  had  in 

judgment  of  divorce  to  enforce  pay-  such  an  action  than  a  recovery  for  past 

ment    of   alimony   decreed    thereby,  due  alimony.     (Id.) 


Matkimonial  Actions  Geneeally.  707 

was  at  the  time  of  the  service  hereinafter  mentioned  more 
than  twenty -one  years  of  age]. 

That  on  the day  of ,  18 — ,  he  personally 

served  the  annexed  summons  \or  summons  and  complaint] 
upon  F.  C,  the  defendant  therein  named,  at  the  store  {or 

dwelling,  etc.]  No. street, ,  in  the 

of ,  in  the  State  of ,  by  delivering  to  and 

leaving  with  said  defendtint  a  copy  \or  copies]  thereof. 

That  dejjonent  knew  the  person  so  served  to  be  the  per- 
son mentioned  and  described  in  said  summons  as  defendant 
therein. 

That  the  knoAvledge  which  deponent  Lad  of  the  person  sa 
served  being  the  defendant  and  the  proper  person  to  be 
served,  and  the  manner  in  which  he  acquired  such  knowl- 
edge are  as  follows  [here  state  same  fully].' 

That  the  copy  of  the  summons  delivered  to  the  defendant, 
as  aforesaid,  contained  the  following  words,  legibly  written 
\or  printed],  upon  the  face  thereof,  to  wit:  "action  to  an- 
nul a  marriage  \or  "action  for  a  divorce,"  or  "action  for  a 
separation,"  as  the  case  may  be]. 

E.  F. 

[Jurat  as  in  form  No.  46.] 


No.  830. 


Affidavit  to  Move  for  Order  to  Show  Cause  why  Husband 
Should  not  Make  Payment  of  Alimony,  etc. 

(Code  Civ.  Pro.,  §  1773.) 
[Title  of  cause.] 

County  of ,  ss.: 

A.  B.,  of ,  being  duly  sworn,  says,  that  she  is  the 

plaintiff  in  the  above  entitled  action. 

That  said  action  was  brought  to  obtain  a  divorce  from 
defendant,  and  a  dissolution  of  the  marriage  between  plnin- 
tiff  and  defendant. 

'The  facts  must  vary  ro  widely  in  quirinf^  it.     S(!e  further  i)rovisiun.s  of 

each  case  that  ft  ih  not  att(!iiii)l(!(l  to  i-iile    18,    as   amended    in    IS'.tf),    such 

^ve  any  g-eneral  form  of  these  state-  amendment  to  take  elfeet  Jan.  1,  IHiMi, 

ments  which  are  rciciuired  liy  rule  18  on   the    Hubject.     Kee,  also,  Scurs   v. 

as   to   th<;   affiant's  knowledf^-e  of  the  Sears  (9  Civ.  Pro.  11.,  A'.Vl),  Uudoli>h  v. 

person  sei-ved  and  the  maimer  of  ac-  Kudolpii  (:M  (State  Hep.,  1). 


708  Forms  Relating  to 

That  an  order  [o?'  final  judgment]  was  made  [or  rendered] 

herein  on  the day  of ,  18 — ,  a  copy  of  which 

is  hereto  annexed. 

That  a  copy  of  said  order  [o?*  judgment]  was,  on  the 
day  of ,  18 — ,  served  upon  the  said  de- 
fendant, but  tliat  said  defendant  has  made  default  in  pay- 
ing the  sum  directed  to  be  paid  by  said  order,  and  falling 

due  on  tlie day  of ,  18 — ,  for  the  support 

and  maintenance  of  the  j^laintiff  [o?'  state  other  purpose]. 

That  payment  cannot  be  enforced  by  means  of  the  seques- 
tration of  the  personal  property  of  said  defendant,  and  of 
the  rents  and  profits  of  his  real  estate,  and  appointing  a  re- 
ceiver thereof,  or  by  resorting  to  the  security  given  by  him 
for  the  payment  of  said  amount,  for  the  following  reasons, 
to  wit  [state  the  reasons,  so  as  to  make  it  appear  that  pay- 
ment cannot  be  enforced  by  such  means]. " 

A.  B. 

[Jurat  as  in  form  No.  46.] 


No.  831. 

Order  to  Show  Cause  why  tlie  Defendant  Should  not  be 
Punished  for  his  Failure  to  Make  the  Payment. 

(Code  Civ.  Pro.,  §  1773.) 

[At,  etc.,  as  in  form  No.  80.] 

On  reading  and  filing  the  affidavit  of  A.  B.,  dated , 

18 — ,  and  on  motion  of  M.  N.,  attorney  for  the  plaintiflf : 

It  is  hereby  ordered,   that  the  defendant,  C.  B.,  show 

cause  at  a Term  of  the Court,  to  be  held 

at  ,  on  the day  of  ,  18 — ,  at  the 

opening  of  the  court,  or  as  soon  as  counsel  can  be  heard, 
why  he  should  not  be  punished  for  his  failure  to  make  the 
payment  mentioned  in  the  said  affidavit. 

That  a  copy  of  this  order,  and  of  said  affidavit,  be  served 
upon  the  said  defendant,  personally,  on  or  before  the 
day  of ,  18 — .' 

'  Forcontempt  proceedings,  after  re-  C,  19  W.  D.,  358) ;  Ryckman  v.  Ryck- 

turn  of  the  order,  see  forms  Nos.  1185,  man  (20  W.  D.,  129  ;   S.  C,   34   Hun, 

etc.  235,   aflF'd  98  N.  Y.,   639) ;  Gray  v. 

'See  Ryer  v.  Ryer  (33  Hun,  116,  S.  Gray  (84  Hun,  347). 


Actions  Ri;lating  to  Corpokations.  709 

TITLE  IL 

FORMS  RELATING  TO  ACTIONS  RELATING  TO  A  CORPORATION. 

Article  First. 

forms  relating  to  action  by  a  corporation,  and  ac- 
tion against  a  corporation  to  recover  damages  or 
property. 

(Code  Civ.  Pro.,  Ch.  15,  Tit.  2,  Art.  L) 
No.  833.     Allegations  of  incorporatiou  in  complaiuf^  in  action  by  or  against  a 
corporation. 
833.     Order  to  be  served  with  answer  or  demurrer  in  action  against  cor- 
poration upon  promissory  note,  or  other  evidence  of  debt. 


No.  832. 

Allegations  of  Incorporation  in  Complaint  in  Action  by  or 
against  a  Corporation. 

(Code  Civ.  Pro.,  §  1775.) 

[Title  of  cause.] 

The  complaint  of  tlie  [insert  name  of  corporation  (or  the 
complaint  of  A.  B.)],  respectfully  shows. 

That  it  [or  that  defendant]  is  a  domestic  [w  foreign]  cor- 
poration [in  case  of  a  foreign  corporation  add,  "created 
under  the  laws  of  the  State,  etc.,  of ."].  ^ 


No.  833. 

Order  to  be  Served  with  Answer  or  Demurrer  in  Action 
against  Corporation  upon  Promissory  Note  or  other 
Evidence  of  Debt. 

(Code  Civ.  Pro.,  §1778.) 

[Title  of  cause.] 

Uxjon  reading  the  pleadings  in  this  action,  and  upon  the 
application  of  M.  N.,  attorney  for  the  defendant  herein.  I 
do  hereby  order  and  direct,  that  the  issues  presented  by  the 
said  pleadings  be  tried  ^ 

Dated ,  18—. 

A.  M.,  Judge. of Court. 

*8ee  Fraser  v.  Granite  State  Provi-  lute  and  not  oonditional  contracts,    kn 

dent  A.s.s'n  (8  Misc.,  7);  Noye  Co.  v.  action  upon  a  life  insiu-ance  jmiicy  is 

Raymond    («    id.,    353) ;    llarinon    v.  not  within  its  provision.s.     (N.  Y.  Life 

Vanderbilt  Hotel  Co.  (70  Hun,  ^^'^2) ;  Ins.  Co.  v.  I'nivci-Hal  Life  Ina.  Co.,  88 

Lamson    Coiih.    Store   Horvifc    Co.  v.  N.  Y.,    424.) 

Coynin^fhani  (11  Mi.sc,  r)79) ;  Nif^ollv.         A.s  to  orif,'in   and  intfcntion   of  that 

Clark  (13  id.,  128) ;  Malt<-i-  of  liroad-  jjrovisoii,  we  (id.)     .See,   also,   Shorer 

way  and  K<!vcnfh  Ave    R.  R.  Co.  (7.{  v.  Times  Pi-inlinfr,  etc.,  Co.  (Hit  N.  Y. 

Hun,  7)  Goldsmith  v.  Wells  Co.  (SO  id.,  48:J.  nW'^  S.  ('..  .''>3  Him.  88) ;   Kord  v. 

480).  niii;,'liaiiitoii  llydi-aulic;  Power  Co.  (54 

*Th(!  instruments  refernMl  to  in  sec-  H'i;i,  4rjl). 
tion  1778  of  Code  Civ.  Pro.,  are  ab.vi- 


710  FoKMs  Relating  to 


Article  Second. 

forms  relating  to  actions  to  procure  the  dissolu- 
tion of  a  corporation,  and  actions  to  enforce  the 
individual  liability  of  the  officers  or  members 
of  a  corporation.  with  or  without  a  dissolution 

THEREOF. 

(Code  Civ.  Pro.,  Ch.  15,  Tit.  2,  Art.  3.) 

No.  834.     Complaint  by  creditor  of  corporation  for  sequestration  of  property, 
etc.,  after  return  of  execution  unsatisfied. 

835.  Complaint  in  suit  by  creditor  or  stockholder  after  demand  upon 

attorney-general  to  commence  tbc  action. 

836.  Final  judgment  in  action  for  dissolution  of  a  corporation. 


No.  834. 

Complaint  by  Creditor  of  Corporation  for  Sequestration  of 
Property,  etc.,  after  Return  of  Execution  Unsatisfied. 

(Code  Civ.  Pro.,  §  1784.) 

[Title  of  cause.] 

The  complaint  of  the  above  named  plaintiff  respectfully 
shows,  that  on  the day  of  ,  18—,  a  judg- 
ment was  rendered  in  the Court  in  favor  of  the 

above  named  plaintiff  against  the  defendant,  the  [insert 
name  of  corporation],  a  domestic  corporation,  for  the  sum  of 
dollars. 

That  the  judgment  roll  ux)on  said  judgment  was  filed  in 

the  county  clerk's  office  of county,  on  the 

day  of ,  18—  [and  that  a  transcript  thereof  was  filed 

and  said  judgment  duly  docketed  in  the  county  clerk's 

office  of  county,  on  the day  of  , 

18—].' 

That  on  or  about  the day  of ,  18 — ,  an 

execution  upon  said  judgment,  against  the  property  of  said 

defendant,  was  issued  to  thie  sheriff  of  the  county  of , 

in  which  count}^  the  said  defendant  [transacts  and]  at  the 
time  of  the  issuing  of  said  execution  transacted  its  general 
business  [or  in  which  county  the  principal  office  of  said  de- 


'  Insert    these    words    in    brackets    than  that  in  which  the  judgment  roll 
where  the  judgment  is  docketed  in,     is  filed, 
and  execution  issued  to,  a  county  other 


Actions  Relating  to  Corporations.  711 

fendant  (is  and)  was,  at  the  time  of  the  issuing  of  said  exe- 
cution, located],  and  that  said  execution  has  been  returned 
by  said  sheriff  wholly  unsatisfied  \or  unsatisfied  to  the  ex- 
tent of dollars]. 

Wherefore  the  plaintiff  demands  judgment  that  the  prop- 
erty of  the  said  defendant  may  be  sequestrated,  and  that 
a  fair  and  just  distribution  thereof,  [fj  and  of  the  proceeds 
thereof,  among  its  fair  and  honest  creditors,  may  be  made 
according  to  law,'  and  that  a  receiver  of  the  property  of  the 
said  corporation  may  be  appointed  with  the  powers  and 
authority  conferred,  and  subject  to  the  duties  and  liabili- 
ties imposed,  by  law  upon  such  a  receiver,''  and  that  the 
plaintiff  may  have  such  other  or  such  further  relief  as  may 
be  proper  in  the  premises,  together  wdth  the  costs  of  this 
action. 

M.  N.,  Plaintiff's  Attorney, 
[Office  address.'] 

[Verification  as  in  forms  Nos.  151,  etc.] 


No.  835. 

Complaint  in  Suit  by  Creditor  or  Stockholder  to  Dissolye 
Corporation  after  Demand  upon  Attorney-General  to 
Commence  the  Action. 

(Code  Civ.  Pro.,  §  1786.) 

[Title  of  cause.] 

The  complaint  of  the  above  named  plaintiff  respectfully 
shows,  that  the  defendant  is  a  domestic  corporation,  and 

that  the  plaintiff  has,  since  the day  of , 

18 — ,  been  a  creditor  of  said  defendant  by  reason  of  the 
following  facts  [here  set  forth  the  liability]  "[or  a  stock- 
holder of  said  defendant  to  the  extent  of  shares] ; 

that  said  defendant  has  remained  insolvent  for  more  than 
one  year  [or  state  one  of  the  other  grounds  for  dissolution 
nnder  section  1785]. 

'See  Rectinn  1793,  Code  Civ.  Pro.  N.  Y.,  40(5);  Peoplo   v.    Kq.    Mutiinl 

'See  sections  1788  and  1789,  Codo  Fij-i;  Iuh.  Co.  (12  Misc.,  .^).">f;). 

Civ.  Pro.,  as  to  receiver  and  his  pow-  ^.Seo  note  2  to  form  No.  lL"i. 

ers,  duties,  etc.     As  to  notice  to  At-  As  to  action  l»y  stocklioldcr  of  cor- 

tomey-fien'l  of  ajtplication  for  Ills  iiji-  poi-ation  to  dissolve  sam<%  see  Porter 

pointinent,  see  Wliitney  v.   N.    Y.  k,  v.  Industi-iul  Tnfniiii.iticni  Cn.  ('>  ^risc, 

Atlantic  R.  Co.  (32  Hun,  1(;4,  171).  202). 
See,  also,  Whittl<!S(!y   v.  l''raut/,    (71 


712  FoKMS  Relatincx  to 

That  [here  state  facts  showing  insolvency,  and  that  such 
Insolvency  has  continued  for  more  than  a  year  {or  state 
other  facts  bringing  the  case  within  one  of  the  subdivisions 
of  section  1785)J. 

That  the  plaintiff,  on  or  about  the day  of , 

18—,  submitted  to  Hon. ,  the  attorney  general  of 

the  State  of  New  York,  a  statement  of  facts,  verified  by  his 
oath,  showing  that  said  defendant  had  been  insolvent  for 
more  than  one  year  [or  state  other  ground  of  action  under 
section  1785],  and  that  the  said  attorney-general  omitted, 
for  more  than  sixty  days  after  said  submission,  to  com- 
mence an  action  for  the  dissolution  of  said  defendant,  and 
that  thereupon  an  aj^plication  w^as  made  by  plaintiff  to  the 

Court,  at  a Term  thereof,  held,  etc.,  for 

leave  to  commence  such  an  action,  and  that  pursuant  to 
said  application  an  order  was  made  at  said  term  granting 
leave  to  the  plaintiff  to  maintain  this  action. 

Wlierefore  the  plaintiff  prays  judgment  that  said  defend- 
ant may  be  dissolved,  and  that  its  corj^orate  rights,  privi- 
leges and  franchises  may  be  declared  forfeited,  and  that 
a  fair  and  just  distribution  of  the  proi:>erty  thereof,  etc' 

[Conclude  as  in  form  No.  834  from  (f).] 

M.  N.,  Plaintiff's  Attorney. 
[Office  address.*] 

[Verification  as  in  forms  Nos.  151,  etc.] 

'  See  section  1793,  Code  Civ.  Pro.  iSee,  as  to  temporary  injunction,  Code 

It  was  held  in  People  v.  Albany  Civ.  Pro.,  §  1787. 
and  Vermont  R.  R.  Co.  (77  N.  Y.,  By  section  1790  (id.),  where  the  ac- 
232;  rev'g  S.  C,  15  Hun,  126),  that  a  tion  is  brought  by  a  creditor  of  a  cor. 
lessee  of  a  portion  of  a  railroad  should  poration,  and  the  stockholders,  etc.,  or 
be  made  a  party  defendant  upon  its  any  of  them,  are  made  liable  by  law, 
own  application,  to  an  action  brought  in  any  event  or  contingency,  for  the 
against  its  lessor  to  forfeit  its  franchise,  payment  of  his  debt,  the  parties  so 
especially  where  the  suit  seems  to  be  a  liable  may  be  made  parties  defendant, 
friendly  one  between  the  people  and  and  their  liability  declared  and  en- 
the  corporation,  and  the  intention  ap-  forced  by  the  judgment, 
pears  to  be  to  abandon  the  portion  of  See  further  as  to  such  actions,  and 
the  road  which  is  leased  to  the  appli-  the  proceedings,  judgment,  etc.,  there- 
cant,  in,  sections  1791-179(5  (Id.). 

2  See  note  2  to  form  No.  122. 


Actions  Relating  to  Corporations.  713 

No.  836. 
Final  Judgment  in  Action  for  Dissolution  of  a  Corporation. 

(Code  Civ.  Pro.,  §  1793.) 

[At,  etc.,  as  in  form  No.  80.] 
[Title  of  cause.] 

The  summons,  with  a  copy  of  the  complaint  in  this  ac- 
tion, having  been  duly  served  upon  the  defendant,  the 
[name  of  corporation],  and  the  said  corporation  having 
appeared  herein  by  M.  F.,  as  its  attorney,  and  answered 
the  said  complaint,  and  the  said  action  having  been  referred 
to  C.  P.,  as  referee,  to  hear  and  determine  the  same,  and 
take  an  account  of  the  property  and  effects  of  the  said 
[name  of  corporation],  and  the  report  of  said  referee  hav- 
ing been  duly  made  and  filed  ;  and  due  notice  of  applica- 
tion for  the  confirmation  of  the  said  report,  and  for  final 
judgment  thereupon,  at  this  term,  having  been  served  upon 
the  said  defendant's  attorney,  and  on  reading  [name  op- 
posing papers] : 

Now,  on  motion  of  I.  J.,  of  counsel  for  the  plaintiff, 
after  hearing,  etc.  [or  no  one  appearing  to  oppose] : 

Ig  is  hereby  ordered,  that  the  said  referee' s  report  be  and 
the  same  is  hereby,  in  all  respects,  confirmed. 

And  it  is  hereby  further  ordered  and  adjudged,  that  the 
said  )  corporation]  be  and  the  same  is  hereby  dissolved,  and 
tha:^  M.  R.,  of ,  be  and  he  is  hereby  appointed  re- 
ceiver of  the  proj)erty  thereof,  and  tlie  said  receiver  is  hereby 
vested  with  the  power  and  authority,  and  subjected  to  the 
duties  and  liabilities,  of  a  receiver,  api:)ointed  pursuant  to 
the  provisions  of  section  2429  of  the  Code  of  Civil  Pro- 
cedure. 

And  it  is  hereby  further  ordered  and  adjudged,  tliat  the 
said  M.  R.,  before  entering  upon  the  duties  of  his  appoint- 
ment, shall  give  and  file  with  the  clerk  of county 

his  bond  to  the  people  of  th(3  State  of  New  York,  with 
sureties,  in  the  penalty  of dollars,  con- 
ditioned for  the  faithful  performance  of  liis  duties  as  such' 
receiver,  and  for  tlie  due  acc<uinting  for  all  moneys  received 
])y  him  as  such  leceiver,  and  that  said  receiver,  from  the 
time  of  liis  having  filed  as  before  directed  tlie  bond  herein- 
9t) 


714  Forms  Relating  to 

before  required,  shall  be  vested  with  all  the  estate,  real  and 
personal,  of  the  said  [name  of  corporation],  and  shall  be 
trustee  of  such  estate  for  the  beneht  of  the  creditors  of 
such  corporation,  and  of  its  stockholders.' 


Article  Third. 

FORMS  RELATESTG  TO  ACTION  BY  THE  PEOPLE  TO  ANNUL  A 

CORPORATION. 

(Code  Civ.  Pro.,  Cli.  15,  Tit.  2,  Art.  4.) 

No.  887.     Complaint  in  action  by  attorney-general  to  vacate  act  of  incorpora- 
tion. 

838.  Complaint  iu  action  to  annul  charter  of  corporation,  under  section 

1708  of  Code  of  Civ.  Procedure. 

839.  Injunction  order  restraining  corporation  and  the  oflficers,  etc..  from 

exercising  corporate  rights,  etc. 


No.  837. 

Complaint  in  Action  by  Attorney-General  to  Vacate  Act  of 

Incorporation. 

(Code  Civ.  Pro.,  §  1797.) 
[Title  of  cause.] 

The  complaint  of  the  above  named  plaintiff  respectfully 

shows,  that  on  the  day  of ,  18 — ,  an  act 

was  passed  by  the  Legislature  of  the  State  of  New  York, 
entitled  "An  act,  etc.,"  directing  the  bringing  of  this  ac- 
tion. 

That  the  act  of  incorporation  of  the  defendant,  the  [name 
of  corporation],  was  procured  upon  a  fraudulent  suggestion 
[or  upon  the  concealment  of  a  material  fact]  made  by  [or 
with  the  knowledge  of]  A.  B.  and  C.  D.  [two]  of  the  per- 
sons incorporated  by  said  act,  said  fraudulent  suggestion 
[or  concealment]  being  as  follows  to  wit  [set  forth  the  facts 
relating  to  the  same]. 

1  See  art.  3  of  title  4  of  chap.  8  of  under  section  2429  of  Code  Civ.  Pro., 
•  part  3  of  R.  S.  (3  R.  S.  [7th  ed.],  p.  by  chapter  245  of  1880. 
2390),  for  the  provisions  of  the  Revised  See  sections  1794  and  1795  of  Code 
Statutes,  on  the  subject  of  receivers  of  Civ.  Pro.,  for  judgment  against  stock- 
corporations,  remaining  unrepealed  and  holders  and  directors,  trustees  or  other 
made  applicable  to  receivers  appointed  officers,  where  they  are  made  parties. 


Actions  Relating  to  Cokporations.  715 

Wherefore  the  plaintiff  demands  judgment  that  the  said 
act  of  incorporation  of  the  defendant  be  vacated  and  an- 
nulled, and  that  the  said  [name  of  corporation],  and  each 
officer  thereof,  be  perpetually  enjoined  from  exercising  any 
of  the  corporate  rights,  privileges  and  franchises  thereof, 
and  that  said  corporation  be  dissolved  ;  and  that  a  receiver 
be  appointed  and  the  property  of  said  corj^oration  be  dis- 
tributed among  its  creditors  and  stockholders,  as  where  a 
corporation  is  dissolved  upon  its  voluntary  application,  as 
prescribed  in  chapter  seventeenth  of  the  Code  of  Civil  Pro- 
cedure, and  for  costs  of  this  action,  and  for  such  other  and 
further  relief  as  may  be  proper.' 

M.  N.,  Attorney -General. 
[Office  address.'] 

[Verification  as  in  form  No.  153,  adding  after  (f)  in  form 
No.  152,  therein  referred  to,  as  follows :  the  people  of  the 
State.] 


No.  838. 

Complaint  in  Action  to  Annul  Charter  of  Corporation, 
under  section  1798,  Code  of  Civil  Procedure. 

(Code  Civ.  Pro.,  §  1798.) 

[Title  of  cause.] 

The  complaint  of  the  above  named  plaintiff  respectfully 
shows,  that  said  plaintiff,  as  attorney  general  of  the  State 

of  New  York,  has  been  duly  authorized,  by  the 

Court,  to  bring  this  action.' 

That    the   defendant,    the    [name    of    corporation],    has 

'  A.S  to  form  of  final  jud<z;ment,  see  The  order  will  not  be  reviewed  upon 

form  No.  830,  and  section  1801,  Code  appeal,  unless,  perhaps  in  an  extreme 

Civ.  Pro.,  in  connection  therewith.  case,  where  the  complaint  is  on  its  face 

"^  See  note  2  to  form  No.  122.  wholly  without  foundation.     (People 

2  Before  granting    leave   the  court  v.  Boston,  H.  T.  and  W.  R.  Co.,  27 

may,   in  its   discretion,   require  such  Hun,  528.) 

previous  notice  of  the  application  as  it  It  rests  in  the  discretion  of  the  court, 

thinks  proper,  to  be  given  to  the  cor-  whether  notice  shall  be  given  of  the 

poration,   or  any  officer  thereof,   and  application.     (Id.) 

may  hear  the  corporation  in  opposition  As  to  the  effect  of  a  reversal  or  va- 

thereto.     (Code  Civ.  Pro.,  §  1709.)  caliiig  of  such  order  upon  a  ponding 

action,  qau^re,     (Id.) 


71 G  Forms  Relating  to 

offended  against  the  rollowing  provision  of  the  act  of  the 

Legislature  of  this  State,  passed ,  entitled  "An  act, 

etc.,''  under  wliich  it  was  created  [or  altered,  or  renewed] 

[or  of  an  act  of  the  Legishiture,  passed ,  entitled 

"An  act,  etc.,"  amending  the  act  entitled  "An  act,  etc.," 

pa.^sed   ,    18 — ,    under  which   it   was   created   {or 

altered,  or  renewed)]  [or  set  forth  other  causes  for  annul- 
ling charter,  as  prescribed  in  section  1798,  subds.  2,  3,  4,  5] 
by  the  following  acts  and  omissions,  viz.  [here  state  same]. 

Wherefore  the  i)]aintiff  demands  judgment  that  the  char- 
ter of  said  [name  of  corporation]  be  vacated  [and  that  its 
existence  be  annulled  (insert  here  same  prayer  for  injunc- 
tion and  receiver  as  in  form  No.  837)],  and  for  costs  of  this 
action,  and  for  such  other  and  further  relief  in  the  premises 
as  may  be  2^roper.* 

M.  IsT.,  Attorney -General. 
[Office  address."] 

[Verification  as  in  form  N"o.  153.     See,  also,  last  form.] 


ISTo.  839. 

Injunction  Order  Restraining  Corporation  and  its  Officers, 
etc.,  from  Exercising  Corporate  Riglits,  etc. 

(Code  Civ.  Pro.   §  1802.) 

[At,  etc.,  as  in  form  No.  80.] 

[Title  of  cause.] 

On  reading  and  filing  the  complaint  in  this  action  [and 
the  affidavits  of  E.  F.  and  G.  H.,  dated  (respectively)  on  the 

day  of ,  18 — ,  and  on  the day  of 

,  18 — ],  and  on  motion  of  M,  N.,  counsel  for  the 

plaintiff,  [*]  and  it  appearing  that  due  notice  of  this  appli- 
cation has  been  given  to  A.  F.,  the  president  [orname  other 
official  title]  of  the  [name  of  corporation],'  and,  on  reading 
[name  opposing  papers],  on  motion  of  M.  N.,  counsel  for 
the  i:)laintiff,  and  P.  R.  for  the  defendant  [or  no  one  aj)pear- 
ing  to  oppose] : 

'  For  form  of  final  judgment,  see        '  See  note  2  to  form  No.  122. 
form  ZSTc.  836,  and  section  1801,  Code        '  An  injunction  order  suspending  the 
Civ.  Pro.  general  and  ordinary  business  of  a  cor- 


Actions  Relating  to  Cokporations.  717 

It  is  hereby  ordered,  that  the  defendant,  the  [name  of  cor- 
poration], and  any  and  all  of  its  directors,  trustees  and  other 
officers  be  and  they  are  hereby  restrained,  commanded  and 
enjoined  to  refrain  from  exercising  any  of  the  corporate 
rights,  privileges  or  franchises  [or  from  exercising  the  fol- 
lowing corporate  rights,  privileges  and  franchises,  to  wit 
(naming  them)]  of  said  corporation  [and  from  transacting 
any  of  the  following  business  (describe  the  same)]  until 
the  further  order  of  the  court. 


Article  Fourth. 

forms  relating  to  two  or  more  of  the  actions  speci- 
fied in  title  two  of  chapter  fifteen  of  the  code 
of  civil  procedure. 

(Code  Civ.  Pro.,  Ch.  15,  Tit.  2,  Art.  5.) 

No.  84t).     Injunction  ot!er  restraining  creditors  of  corporation  from  bringing 
actions,  or  from  talcing  lurther  proceedings  in  actions. 
841.     Order  requiring  creditors  of  corporation  to  exhibit  and  prove  their 
claims. 

842.  Notice  by  referee  to  creditors  of  corporation  to  present  and  prove 

their  claims. 

843.  Notice  of  application  for  injunction  against  corporation  or  officer 

thereof. 

844.  Notice  of  motion  for  appointment  of  receiver  of  corporation. 


No.  840. 

Injunction  Order  Restraining  Creditors  of  Corporation 
from  iJriuging  Actions,  or  from  Taking  Further  Proceed- 
ings in  Actions. 

(Code  Civ.  Pro.,  §  1800.) 

As  in  form  No.  839  to  ['■•],  and  from  thence  as  follows : 
Ordered,  that  the  creditors  of  the  [name  of  corporation]  be 
restrained,  and  are  hereby  commanded  and  enjoined  to  re- 
frain from  Ijringing  actions  against  the  said  defendant  [or 
against  the  said  defendants,  or  any  of  them],  for  the  recov- 
ery of  a  sum  of  money  [or  that  A.  B.  be  restrained,  etc.,  from 

poration,  etc.,  can  only  l)c granted  after    (Code  Civ.  Pr^.,  g  1809.)     For  form 
notice  of  the  application  therefor  to    of  notice,  see  form  No.  84Ji 
the  proper  officer  of  the  corporation 


718  Forms  Relating  to 

taking  any  further  23roceeclings  in  the  action  heretofore  com- 
mencetl  by  him  against  said  corporation  {or  against  C.  D., 
a  stockholder  of  said  corporation)  for  the  recovery  of  the 

sum  of  dollars],   until   the  further  order  of   the 

court.'  

No.  841. 

Order  Requiring  Creditors  of  Corporation  to  Exhibit  and 
Prove  their  Claims. 

(Code  Civ.  Pro.,  §  1807.) 

[At,  etc.,  as  in  form  No.  80.] 
[Title  of  cause.] 

On  reading  and  filing  the  complaint  in  this  action,  and 
[name  other  motion  jmpers] : 

It  is  hereby  ordered,  on  motion  of  E.  F.,  counsel  for  the 
plaintiff,  that  the  ci'editors  of  the  [name  of  corporation]  are 
hereby  required  to  exLioit  and  prove  their  claims  against 
said  corporation,  to  M.  R.,  t>f  • ,  who  is  hereby  ap- 
pointed referee  for  that  purpose,  within  six  months  from 
the  first  2:>ublication  of  notice  of  this  order,  at  the  office  of 

said  referee.  No. street,  in  the of , 

and  thereby  make  themselves  parties  to  this  action. 

And  it  is  further  ordered,  that  the  creditors  of  the  said 
corporation,  who  make  default  in  so  doing,  shall  be  pre- 
cluded from  all  benefit  of  the  judgment  entered  on  the 

day  of ,  18 —  [or  to  be  entered]  herein, 

and  from  any  distribution  which  may  be  made  thereunder. 

And  it  is  further  ordered,  that  notice  of  this  order  'shall 
be  given  by  publication  in  [name  the  newspapers  and  place 
of  their  j)ublication],  for  [state  the  length  of  time  of  pub- 
lication]. 

No.  842. 

Xotice  hy  Referee  to  Creditors  of  Corporation  to  Present 
and  Prove  their  Claims. 

(Code  Civ.  Pro.,  §  1807.) 

[Title  of  cause.] 

Pursuant  to  the  provisions  of  section  1807  of  the  Code  of 

'  Bee  Atty.-Gen.  v.  Guardian  M.  L.  Schuyler's  Steam  Tow  Boat  Co.  (04 
Ins.   Co.  (77  N.  Y.,  272).     Matter  of    Hun,  384,  aflPd  S.  C,  136  N.  Y.,  169). 


Actions  Relating  to  Corporations.  719 

Civil  Procedure,  I,  M.  R.,  the  referee  appointed  herein  by- 
order  of  the Court,  duly  made  and  entered  as  here- 
inafter mentioned,  do  hereby  give  notice  to  aU  the  creditors 
of  the  [name  of  corporation],  that  an  order  has  been  entered 

in  the  above  entitled  action  at  a Term  of  the 

Court,  held  at  the of ,  on  the day  of 

,  18 — ,  requiring  all  creditors  of  said  corporation  to 

exhibit  and  prove  their  claims  to  me  as  such  referee,  at  my 
office  hereinafter  mentioned,  within  [six]  months  from  the 
first  publication  of  this  notice,  and  thereby  make  themselves 
parties  to  the  said  action,  and  that  the  creditors  who  make 
default  in  so  doing  shall  be  precluded  from  the  benefit  of 

the  judgment  entered  herein  on  the day  of , 

18 —  [or  to  be  entered  herein],  and  from  any  distribution 
which  is  to  be  made  thereunder,  and  that  pursuant  to  said 
order,  I  do  hereby  notify  said  creditors  that  they  present 
and  prove  their  said  claims  against  said  corporation  to  me, 

as  such  referee,  on  or  before  the day  of , 

18 — ,  at  my  office.  No. ,  street,  in  the 

of .' 

Dated ,  18—. 

M.  E,.,  Referee. 


No.  843. 

Notice  of  Application  for  Injunction  against  Corporation 
or  Officer  Thereof. 

(Code  Civ.  Pro.,  §  1809.) 

Sir — You  will  please  take  notice,  that  upon  the  pleadings 
and  other  proceedings  in  the  above  entitled  action,  and 
upon  the  affidavits  and  other  papers,  with  copies  of  which 
you  are  herewith  served,  a  motion  will  be  made  at,  etc., 
["*]  for  an  injunction  order  restraining  the  defendant,  the 
[name  of  corporation],  and  any  and  all  of  its  directors, 
trustees  and  other  officers  from  exercising  any  of  the  cor- 
porate rights,  privileges  or  franchises  \or  from  exercising 
the  following  corporate  rights,  privileges  and  franchises,  to 
wit  (naming  them)]  of  said  corporation  [and  from  trans- 

'ye«   People  v.  Security    Life   Inf.  Huunt  to  which   amendment  in.sert   in 

Co.  (78  N.  Y.,  114;  79  i<l.,  'JOT)  ;  At-  above  form  after  word  "thereunder" 

torney-General    v.    Continental    Life  as   follows :    except   »i,m   provided   by 

Ins.  Co.  (88  N.  Y.,  77)  ;  and  se<s  also,  saiil  section  1807  of  the  Code  of  Civil 

amendment  to  section  1807,  Codi-  Civ.  Procedure. 
Pro.,  by  ch.  372  of  LawH  of  IvSHC,  pur- 


720  Forms  Relating  to 

acting  any  of  the  following  business  (describe  the  same)], 

and  for  such  other  and  further  order  or  relief  as  may  be 

proper.  • 

Yours,  etc., 

M.  N.,  Attorney -General. 

[Office  address.'] 

To  A.  R.,  President  of  the \or  other  offi,cer\ 


No.  844. 

Notice  of  Motion  for  Appointment  of  Receiver  of  Cor- 
poration. 

(Code  Civ.  Pro.,  §1810.) 

As  in  form  No,  843  to  [*],  and  from  thence  as  follows : 
For  the  appointment  of  a  temporary  receiver  of  the  prop- 
erty of  the  said  corporation,  with  all  the  powers  and 
authority  conferred  by  law  upon  such  a  receiver  \or  with 
the  powers  and  authority,  and  subject  to  the  duties  and  lia- 
bilities, of  a  j^ermanent  receiver,  or  so  much  thereof  as  the 
court  may  think  proper],'  and  for  such  other  or  further 
relief  as  the  court  may  deem  proper  to  grant  [with  costs  of 
this  motion]. 

M.  N.,  Attorney  General  [or  Plaintiff '' s  Attorney']. 
[Office  address  '] 

To  F.  R.,  President  [or  other  officer']  of  the  [name  of 
corporation]. 

*  It  was  held  in  Wilkie  V.  Rochester  'See  sections  17b8  and   1789,  Code 

and  S.  L.  R.  R.  Co.  (12  Hun,  242),  un-  Civ.  Pro.,  and  see  chap.  378,  Laws  of 

der  chap.  151,  §  1,  of  Laws  of  1870,  1883,  "An  act  in  relation  to  receiver.s 

corresponding      substantially      with  of  corporations."     Also,  Porter  v.  In- 

§  1809  of  Code  of  Civ.  Pro.,  that  an  ex  dustrial  Information  Co.  (5  M  sc.  262) ; 

•parte  injunction  to  restrain  the  direct-  Holland    Trust    Co.    v.    Consolidated 

ors  of  a  corporation   from  removing  Gas,  etc  ,  Co.  (85  Hun,  454). 

the  treasurer  and  considering  a  reso-  See  note  2  to  form  No.  122. 
lution  declaring  the  office  vacant  was 
void,  and  that  the  objection  was  not 
waived  by  a  motion  to  dissolve  it. 


Actions  Relating  to  Decedent  3  Estate.       721 


TITLE  III. 

forms  relating  to  actions  relating  to  the  estate  of 

a  decedent. 

Article  First. 

FORMS  RELATING  TO  ACTIONS  BY  OR  AGAINST  AN  EXECUTOR 
OR  ADMINISTRATOR. 

(Code  Civ.  Pro.,  Ch.  15,  Tit.  3,  Art.  1.) 

No.  845.     Complaint  in  action  by  or  against  executor  or  administrator 

846.  Complaint  against  executor  or  administrator  for  legacy  or  distribu. 

live  share. 

847.  Bond  by  guardian  ad  litem  to  infant  where  suit  is  brought  for 

legacy,  etc. 

848.  Affidavit  to  obtain  order  from  surrogate  to  issue  execution  against 

an  executor  or  administrator. 

849.  Notice  to  executor  or  administrator  of  application  for  leave  to  issue 

execution  on  judgment  against  him. 

850.  Order  permitting  execution  to  issue  against  an  executor  or  adminis- 

trator on  judgment  against  him. 

851.  Undertaking  required  from  legatee  before  issuing  of  execution  upon 

judgment  against  executor. 


No.  845. 

Complaint  in  Action  by  or  against  Executor  or  Adminis- 
trator. 

(Code  Civ.  Pro.,  §  1814.) 

[Title  of  cause.] 

The  complaint  of  the  above  named  plaintiff  respectfully 
shows,  that  [set  forth  cause  of  action]. 

That  on  or  about  the day  of ,  18 — ,  the 

said  A.  B.  died,  being,  at  the  time  of  his  death,  a  resident 

of  the  county  of [or  state  other  facts  conferring 

jurisdiction  on  the  surrogate's  court],'  intestate  [or  leaving 
a  last  will  and  testament,  by  wdiich  he  nominated  and  con- 
stituted the  plaintiff  (or  defendant)  executor  thereof] ;  and 

that  afterwards,  and  on  the day  of ,  18 — , 

the  said   plaintiff  for  d(-fendnnt]  was,  by   the  surrogate's 

court  of  the   said  county  of  ,  duly  ai)pointed  as 

administrator  of  all  and  singular  the  goods,  chattels  and 

'  See  peotinn  2476,  Code  Civ.  Pro.,  to  fake  proof  of  wills  and  to  grant  let- 
as  to  jurii^diction  of  aurrogate's  courts     ters  testamentary  or  of  ndministratioo. 

91 


722 


Forms  Relating  to 


credits  of  said  A.  B.  [or  as  executor  of  said  last  will  and 
testament  of  said  A.  B.],  by  letters  of  administration  [or 
testamt-ntary]  dulj^  issued  to  said  plaintiff  [or  defendant], 
and  tliat  said  plaintilf  [or  defendant]  iias  duly  qualified  and 
entered  upon  the  discharge  of  his  duties  as  such  adminis- 
trator [or  executor]. 

Wherefore  the  plaintiff  demands  judgment,  as  such  ex- 
executor  [or  administrator  {or  against  said as  such. 

executor,  etc.)],  for  [state  relief].' 

M.  N.,  Plaintiff'' s  Attorney. 
[Office  address.'] 

[Verification  as  in  forms  Nos.  151,  etc.] 


No.  846. 

Complaint  against  Executor  or  Administrator  for  Legacy 
or  Distributive  Share. 

(Code  Civ.  Pro.,  §  1819.) 

[Title  of  cause.] 
The  complaint  of  the  above  named  plaintiff  respectfully 


'Where  the  averments  in  and  the 
frame  of  a  complaint  are  such  as  to 
aflix  to  the  plaintiff  a  representative 
character  and  standing'  in  the  litiga- 
tion, and  to  show  that  the  cause  of  ac- 
tion, if  any,  devolved  ujion  him  solely 
in  that  character,  the  omission  in  the 
title  to  the  action  of  the  word  "  as  " 
between  the  name  of  the  plaintiff  and 
words  descriptive  of  his  representative 
capacity,  does  not  prevent  him  from 
claiming-  in  that  capacity.  (Beers  v. 
Shannon,  73  N.  Y.,  292  ;  rev'g'S.  C, 
12  Hun,  161.) 

Where  the  action  was  in  form 
against  W.  as  executor,  but  the  cause 
of  action  was  against  him  as  devisee, 
and  the  objection  was  not  taken  below 
as  to  form.  Held,  that  as  the  objec- 
tion was  a  technical  one,  affecting  no 
substantial  right,  the  action  would  be 
treated  as  one  to  enforce  the  personal 
liability  of  W.  (Brown  v.  Knapp,  79 
N.  Y.,  136  ;  rev'g  S.  C,  17  Hun,  160.) 
See,  also,  Stilwell  v.  Carpenter  (2  Abb. 
N.  C,  238),  Cordier  v.  Thompson  (8 
Daly,  172),  Patterson  v.  Copeland  (52 
How.  Pr.,  460).  Alger  v.  Conger  (17 
Hun,  45),  Mander  v.  Low  (12  Misc., 
316),  Gibson  v.  Blakley  (85  Hun,  305), 
Duclos  V.  Benner  (25  State  Rep.,  413), 


Scott  V.  Parker  (id.  865),  Hayward  v. 
Place  (27  id.,  115),  Benner  v.  Benner 
(35  id.,  602),  Newcombe  v.  Lottimer 
(id.,  614,  affd,  without  opinion,  128  N. 
Y.,  618),Griswold  v.  Met.  Elevated  R. 
Co.  (122  id.,  102),  Laney  v.  Laney  (33 
State  Rep.,  673),  Burtis  v.  Burtis  (39 
id.,  637),  Knox  v.  Met.  Elevated  R. 
Co.  (58  Hun,  517),  Douglass  v.  Leon- 
ard (44  State  Rep.,  293,  rev'g  S.  C, 
39  id.,  179),  Kraemer  v.  Adels- 
berger  (122  N.  Y.,  467),  Watson  v. 
King  (73  Hun,  340),  Wetmore  v.  Por- 
ter (92  N.  Y.,  76),  Schultz  v.  Cooking- 
ham  (30  Hun,  443),  Matter  of  Consalus 
(95  N.  Y.,  340),  Kittleman  v.  Bradt 
(13  Daly,  529),  Buckland  v.  Gallup 
105  N.  Y.,  453,  aff'g  S.  C,  40  Hun, 
61),  Ensign  v.  Ensign  (14  State  Rep., 
181),  Ferris  v.  Disbrow  (22  Week. 
Dig.,  330),  Guibert  v.  Sanders  (10 
State  Rep.,  43),  Pittman  v.  Johnson 
(35  Hun,  38,  aff'd  102  N.  Y.,  742), 
Hentz  V.  PhilUps  (23  Abb.  N.  C,  15), 
Shepard  v.  Manhattan  R.  Co.  (5  N. 
Y.  Supp.,  189),  Sheffield  v.  Hamlin 
(26  Hun,  237). 

In  an  action  to  foreclose  a  purchase 
money  mortgage,  given  by  an  execu- 
tor, as  such,  it  is  unnecessary  to  allege 
the  time  and  manner  of  his  appoint- 


Forms  Relating  to 


722a 


ment,  as  he  and  his  grantees  are  es- 
topped from  denying-  it.  (Skelton  v. 
Scott,(lS  Han,  375.)  See,  also.  Kings- 
land  V.  Stokes  (25  id.,  307)  ;  Secor  v. 
Pendleton  (47  id.,  281). 

The  addition  of  the  words  "execu- 
tor, etc.,"  in  the  summons  and  com- 
plaint, may  be  treated  as  surplusage, 
where  the  complaint  contains  nothing 
to    indicate    that    the    plaintiflF  was 


charged,  or  the  defendant  was  sued, 
in  a  representative  capacity.  (Ban- 
non  V.  McGrane,  45  N.  Y.  Super.  Ct. , 
517.) 

As  to  suits  by  foreign  executors,  see 
Matter  of  Webb  (11  Hun,  124),  Brown 
V.  Knapp  (17  Hun,  160),  Field  v.  Gib- 
son (20  Hun,  274),  Lawrence  v.  Town- 
send  (88  N.  Y.,  24). 

^  See  note  2  to  form  No.  122. 


> 


Actions  Relating  to  Decedent's  Estate.       723 

shows,  that  on  or  about  the day  of ,  18—, 

J.  R.  died  intestate  [or  leaving  a  last  will  and  testament, 

dated  on  the day  of ,  18 — ],  being  at  the 

time  of  his  death  a  resident  of  the  county  of [or 

state  other  facts  conferring  jurisdiction  on  the  surrogate  to 
issue  letters]. 

That  afterwards,   and  on  or  about  the day  of 

,  18 — ,  and  more  than  one  year  since,  the  defend^ 

ant,  C.  D.,  was  duly  appointed  by  the  surrogate  of 


county,  by  letters  of  administration  [or  testamentary],  duly 
issued,  to  be  the  administrator  of,  etc.  [o7'  to  be  the  execu- 
tor of  the  said  last  Avill  and  testament],  of  said  deceased ; 
and  the  said  C.  D.  thereupon  duly  qualified,  and  entered 
upon  the  discharge  of  his  duties  as  such  administrator  [or 
executor]. 

That  said  J.  R.  left  him  surviving  the  said  plaintiff,  his 
[state  relationship],  and  only  next  of  kin. 

That  said  J.  R.  left  no  widow^  or  children  surviving  him 
[or  state  other  facts,  showing  plaintiff's  right  to  distributive 
share]. 

That  the  said  distributive  share  of  said  estate,  to  which 
the  plaintiff  is  entitled,  amounts  to dollars. 

[Or  that  in  and  by  said  last  will  and  testament,  rhe  said  J. 
R.  bequeathed  to  the  plaintiff  a  legacy  of dollars.} 

That  on  or  about  the day  of ,  18 — ,  plain- 
tiff demanded  of  the  said  C.  D.,  as  such  administrator  [or 
executor],  the  payment  of  such  distributive  share  of  the 
estate  of  said  J.  R.  [or  of  such  legacy]  to  which  he  is  enti- 
tled as  aforesaid,  but  that  said  C.  D.  refused,  and  still  re- 
fuses and  neglects,  to  pay  the  same. 

Wherefore  the  plaintiff  demands  judgment  for  the  sum 

of dollars,  with  interest  thereupon  from  the 

day  of ,  18 — ,'  against  the  said  defendant,  as  admin- 
istrator [or  executor]  as  aforesaid,  together  with  the  costs 
of  this  action.' 

M.  N.,  Plami(fr\^  Attorney, 
[(d^vi^.  address.'] 

[Verification  as  in  forms  Nos.  1.01,  etc.] 

'As  to  interest  on  legacies,  see  Brown  (127  id.,  402)  ;  Matter  of  Stanliekl  (135 

V.  Kiiapp  (infra),  Kerr  v.  Douf^-herty  id..  292);    Matter  of  Clark  (fJ'J  llmi, 

(17  iliin,   -Ml  ;  art M  S.   V  ,  Tit    N.  V  ,  275)  ;  matter  of  Maine  (id..  H:^4)  ;  .Mal- 

327);  TiioiTi  v.  frarn<ir  (11:5  N.  V.,  lOS);  t<jr  of  l^nsnk  (2  ('oiiikiIv,  ;{!S())  ;  .Matter 

Matter  of    Mrfrow;iri    (l:.'4    id.,  .02(',)  ;  of  M:Kay  (5  Mi.sc.  123). 
Lyon  V.  Industrial  School  As.s(jciati()ii 


724  Forms  Kelating  to 

No.  847. 

Bond  by  Guardian  ad  litem  to  Infant,  where  Suit  is 
Brought  for  Legacy,  etc. 

(Code  Civ.  Pro.,  g  1820.) 

As  in  form  No.  340  to  [*J,  and  from  thence  as  follows : 
That  whereas,  the  above  bounden,  A.  B.,  is  about  to  be  ap- 
pointed the  guardian  ad  litem  of  said  G.  H.,  an  infant,  in 
an  action  about  to  be  commenced  by  said  infant  against 
C.  D.  as  executor  of  the  last  will  and  testament  [or  as  ad- 
ministrator of,  etc.]  of  E.  F.,  deceased,  for  the  recovery  of 

a  legacy  of  dollars,  bequeathed  to  said  G.  H.  by 

said  will   [or  of  a  distributive   share  of  — dollars 

in  the  estate  of  said  E.  F.  belonging  to  said  G.  H.] : 

Now,  therefore,  the  condition  of  this  obligation  is  such 
that  if  the  said  A.  B.  shall  duly  account  to  said  G.  H.  when 
said  G.  H.  shall  attain  full  age,  or  in  case  of  his  death  to 
his  legal  representatives  for  all  money  or  other  property 
received  by  said  A.  B.  as  such  guardian  ad  litem  by  reason 
of  such  legacy  [or  distributive  share],  then,  etc.,  as  in  form 
No.  340  to  end. 


A. 

B. 

[L. 

S.] 

C. 

D. 

[L. 

s.] 

E. 

F. 

[L. 

S.] 

Sealed  and  delivered  in  presence  of 

[Acknowledgment  or  proof,  affidavits  of  justification  and 
approval  as  in  forms  Nos.  340  and  538.] 


»  "At  common  law,  a  suit  for  a  legacy  160;  S.  C,  79  N.  Y.,  136),  HojH;  v- 
did  not  lie.  (5  Term  R.,  690;  18  Hoyt  (17Hiin,  192),  Lewis  v.  Maloney 
Johns.,  428;  4  Mass.,  634.)  In  this  (12  Hun,  207),  Kerr  v.  Dougherty  (s?i- 
State  a  remedy  by  action  in  courts  "bf  pra),  Drake  v.  Wilkie  (30  Hun,  537), 
law  was  given  by  statute  as  early  as  Wall  v.  Bulger  (46  Hun,  346),  In  re 
1801.  (24  Sess.  Laws,  ch.  174,  §  7;  Van  Dyck  (25  Week.  Dig.,  177),  Mat- 
1  Webs.  &  Skin.,  540,  §  18.)  Substan-  ter  of  Dunham  (22  Abb.  N.  C,  479), 
tially  the  same  provision  was  incor-  Matter  of  Underhill  (32  State  Rep., 
porated  in  the  Revised  Statutes.  (2  1061,  aff'g  S.  C,  1  Connoly,  541), 
R.  S.,  114,  §§  9-16.)  Under  the  stat-  Camp  v.  Smith  (117  N.  Y.,  354),  Cocks 
ute,  actions  of  debt  for  legacies  have  v.  Haviland  (28  State  Rep.,  389),  Car- 
been  frequently  entertained.  (2  Johns,  ter  v.  Board  of  Education  of  Presby- 
Cas.,  97 ;  id.,  200  ;  2  Johns.,  243 ;  10  terian  Church  of  U.  S.  (68  Hun,  435), 
id.,  155.)"  Op.  Smith  J.,  in  Rundle  Matter  of  Hodgman  (140  N.  Y.,  421), 
v.  Allison  (34  N.  Y.,  183).  and  see,  also,  forms  Nos.  1471,  1472, 

See,  further,  as  to  actions  on  lega-  'post,  and  notes  thereto, 

cies  Eherhardt  v.  Schuster  (6  Abb.  N.  =See  note  2  to  form  No.  122. 
C,  141),  Brown  v.  Knapp   (17   Hun, 


Actions  Relating  to  Decedent's  Estate.       725 

No.  848. 

Affidavit  to  Obtain  Order  from  Surrogate  to  Issue  Execu- 
tion upon  Judgment  against  Executor  or  Administrator. 

(Code  Civ.  Pro.,  §  1625.) 
[Title  of  cause.] 

County,  55.; 

A.  B.,  of ,  being  duly  sworn,  says,  that  on  the 

day  of ,  18 — ,  a  judgment  was  recovered 


in  the Court  in  favor  of  [deponent],  as  plaintiff, 

against  R.  M.,  as  executor  [or  as  administrator]  of,  etc.,  of 
J.  G.,  deceased,  to  whom  letters  testamentary  [or  of  admin- 
istration] were  issued  by  the  surrogate's  court  of 

county,  on  the day  of ,  18 — ,  for  the  sum 

of dollars,  damages  and  costs  ;  and  that  the  judg- 
ment roll  upon  said  judgment  was  liled  in  the  

county  clerk's  office  on  the  said day  of , 


18 —  [and  that  said  judgment  was  duly  docketed  in  the 

county  clerk's  office  of county,  on  the  

day  of ,  18—].' 

That  the  said  judgment  has  never  been  paid,  nor  has  any 
part  thereof  [or  state  the  sum  due,  according  to  the  fact]. 

That  the  indebtedness  upon  which  said  judgment  was  re- 
covered was  [set  forth  nature  of  debt]. 

That  said  R.  M.  resides  at ,  in  the  county  of 

[or  that  the  said  R.  M.  cannot,  with  due  diligence, 

be  served  with  notice  of  an  application  for  an  order  grant- 
ing leave  to  issue  execution,  as  will  appear  from  the  affida- 
vits of  I.  J.  and  K.  L  ,  hereto  annexed  [or  state  search  and 
inquiry  made  by  deponent  to  find  the  executor,  etc.]. 

A.  B. 

[Jurat  as  in  form  No.  46.] 


No.  849. 

Notice  to  Executor  or  Administrator  of  Application  for 

Leave  to  Issue  Execution  on  Judgment  against  him. 

(Code  Civ.  Pro.,  g  1826.) 

[Title  of  cause.] 

Sir — Take  notice,  that  upon  the  affidavit,  with  a  copy  of 

'  Insert    these  words  in    brackets,     in   another  county   than   the  one  In 
■where  the  judgment  has  been  docketed    which   the  judgment  roll  was  filed. 


726  Foinis  Bklatiis^g  to 

which  you  are  herewith  served,  a  motion  will  be  made  to 

the  surrogate  of county,  at  his  office  in  the 

of  ,  on  the day  of  ,  18 — ,  at  — 

o'clock  —  M.,  for  an  order  permitting  an  execution  to  be 
issued  upon  the  judgment  mentioned  in  the  said  affidavit 
for  the  amount  due  thereupon  as  stated  in  the  said  affida- 
vit, and  for  such  other  or  further  order  or  relief  as  may  be 
proper. 

Yours,  etc., 

J.  C,  Plaintiff''  s  Attorney. 
[Office  address.'] 
To  R.  M.,  Executor  \or  Administrator^  of,  etc.,  of  Z.  G., 
deceased.  

No.  850. 

Order  Permitting  Execution  to  Issue  against  an  Executor 
or  Administrator  on  Judgment  against  him. 

(Code  Civ.  Pro.,  §  1826.) 

At  a  Surrogate's  Court,  held  in  and  for  the  county  of , 

on  the day  of ,  18 — : 

Present,  Hon.  P.  R.,  Surrogate. 

[Title  of  proceeding.] 

An  application  having  been  made  by  A.  B.  for  leave  to 

issue  execution  upon  a  judgment  rendered  by  the 

Court  on  the day  of ,  18—,  for dol- 

lars  and cents,  in  favor  of  said  A.  B.  against  R.  M  , 

as  executor  \or  administrator]  of,  etc.,  of  J.  G.,  deceased; 
and  due  notice  of  said  application  having  been  given,  as 
required  by  law,  to  said  executor  \or  administrator],  and 
an  accounting  having  been  had  on  the  part  of  said  execu- 
tor, etc.,  by  which  it  appears  that  the  assets  in  the  hands  of 
said  R.  M.,  as  such  executor  \or  administrator],  after  pay- 
ment of  all  sums  chargeable  against  them  for  expenses,  and 
for  claims  entitled  to  priority  as  against  the  said  plaintiff 
are  [not]  {or  will  (notl]  be  sufficient  to  pay  all  the  debts, 
legacies  and  other  claims  of  the  class  to  which  the  claim  of 
the  plaintiff,  under  said  judgment,  belongsj 

and  it  is  de.^ircd  to  issue  execution  to        '  See  uote^  to  form  No.  133. 
the  latter  county. 


Actions  Relating  to  Decedent's  Estate.       727 

It  is  hereby  ordered  and  directed,  that  an  execution  may- 
issue  against  the  said  defendant  as  executor  [or  administra- 
tor] as  aforesaid,  upon  said  judgment,  for  the  collection  of 
the  sum  of  [insert  amount],  out  of  the  personal  property 
in  his  hands  as  such  executor  [or  administrator].* 


No.  851. 

Undertaking  Required  from   Legatee   before  Issuing  of 
Execution  upon  Judgment  against  Executor. 

(Code  Civ.  Pro.,  §1827.) 

[Title  of  proceeding.! 

Whereas,  on  the day  of ,  18 — ,  a  judg- 
ment was  rendered,  by  the Court,  in  an  action  in 

which  A.  B.  was  plaintiff  and  R.  M.,  as  executor  of  the  last 
will  and  testament  [or  as  administrator  of,  etc.]  of  G.  J.,  de- 
ceased, was  defendant,  in  favor  of  said  plaintiff  and  against 
said  defendant,  for  the  recovery  of  dollars,  dam- 
ages and  costs,  being  for  the  amount  of  a  legacy  bequeathed 
to  said  A.  B.  by  the  said  will  [or  to  which  said  A.  B.  was 
entitled  for  a  distributive  share  of  the  estate  of  said  G.  J.], 
and 

Whereas,  an  application  has  been  made  to  the  surrogate 

of  county  for  leave  to  issue  execution  upon  said 

judgment,  and  the  said  surrogate  has  required  the  said  A. 
B.  to  file  an  undertaking,  as  required  by  law,  to  said  execu- 
tor [or  administrator]  before  making  an  order  permitting 
such  execution  to  be  issued,  in  the  sum  of dollars : 

Now,  therefore,  we,  E.  F.,  of ,  banker,  and  I.  J., 

of  ,  merchant,"  do  hereby,  jointly  and  severally, 

*For   forms   of    execution   and    in-  hcaar   (88   N.   Y.,  .')03,  aff'g-  S.  C,  24 

dorsement  thereupon  see  forms  Nos.  Hun,    108)    Columl>u.s   Watch    Co.  v. 

559,260.  Ilodenpyl  (61    Hun,  S.")?,  aflM  S.  C, 

See,  also,  Glaciun  v.  Fotrel  (88  N.  135  N.  Y.,  430),  Estate  of  Morey  (6 

Y.,  434,  aff'^'  S.  C,  4  Redf.,  516),  In  Dem.,  287). 

re  Nichols  (4  Redf.,  288),  In  re  Clark  If  it  appears  by  the  affidavit  that 

(2  Abb.  N.  C,  208),  Keyser  v.  Kelly  service  cannot  be  made  upon  the  exec- 

(4    Redf.,    157),    Estate   of    Kelsey  (4  utor  or   administrator  with  due  dili- 

Month.   L.  Bui.,   56),  Peters   v.  Carr  gence,  notice  must  be  g-ivt-n  to  such 

(2  Dem.,  22),  Kipjjfd  v.  Macklin  (id.,  person.s,  and  in  such  manner,  as  the 

219),   Matter   of    Dout^lujrty  (15  State  surrof^at*;  directs,  by  an  oi-dcr  to  show 

Rep.,  743),  Ki.sner  v.  A\-t!ry   (2   Dem.,  cause;  why  the  ai)i)licali(iii  siiould  not 

466),  Jael  v.  Ritterman  (i<l.,  242),  Pey-  be  frninted.     (Code  Civ.  Pro.,  §  1826). 

ser  V.  Wendt  (id.,  22),  Estate;  of  Tay-  ^The  sureties  and  airtount  are  to  be 

lor    (8    Civ.  Pro.   R.,  453),   Matter  of  such  as  the  surrof^ate  dirtM^ts.     (Cod« 

Jansen    (1    Connoiy,    362),    Matter-    of  Civ.  Pro.,  &  1827.)     See  sections  810. 

Boyle  (29  State  Re)..,  946),  Matter  of  etc..  Code;  Civ.  Pro.,  and  notes  to  form 

Warintc  (7  Misi,,  502),  Picntiss  v.  Bow-  No.  340,  as  to  undertakings  generally, 
den  (145  N.  Y.,  342),  Schmitz  v.  Lang- 


728  Forms  Relating  to 

undertake,  pursuant  to  the  statute  in  such  case  provided. 

in  the  sum  of doHars,  that  il",  after  the  collection  ot 

any  sum  of  money  by  virtue  of  the  said  execution,  the  re- 
maining assets  are  not  sufficient  to  pay  all  sums  for  which 
tlie  said  defendant  is  chargeable,  for  expenses,  claims  enti- 
tled to  priority  as  against  the  said  applicant,  and  the  other 
legacies  [or  distributive  shares],  of  the  class  to  which  the 
said  applicant's  claim  belongs,  the  plaintiff  will  refund  to 
the  defendant,  the  sum  so  collected,  or  such  ratable  part 
thereof,  with  the  other  legatees  or  representatives  of  the 
same  class,  as  is  necessary  to  make  up  the  deficiency. 

Dated ,  18—. 

E.  F. 
I.  J. 

In  presence  of . 

[Acknowledgment  or  proof,  affidavit  and  approval  by  sur 
rogate  as  in  forms  Nos.  340,  638.] 


Article  Second. 

FORMS   RELATING   TO  ACTION   BY  A  CREDITOR   AGAINST   HIS 
DEBTOR'S  NEXT  OF  KIN,  LEGATEE,  HEIR  OR  DEVISEE. 

(Code  Civ.  Pro.,  Ch.  15,  Tit.  3,  Art.  2.) 

No.  852.     Complaint  in  action  against  next  of  kin  or  legatee  for  debt  of 
decedent. 

853.  Complaint  in  action  against  heirs  or  devisees  for  debt  of  intestate 

or  testator. 

854.  Answer  by  lieir  or  devisee  of  notliing  received  by  descent  or  devise. 

855.  Final  judgment  in  action  for  recovery  from  lieir  or  devisee  of  debt 

of  decedent. 


No.  852. 

Complaint  in  Action  agains*t  Next  of  Kin  or  Legatee  for 
Debt  of  Decedent. 

(Code  Civ.  Pro.,  §  1837.) 

[Title  of  cause.] 

The  complaint  of  the  above  named  plaintiff  respectfully 
shows,  that  [set  forth  original  indebtedness  of  intestate  or 
'estator]. 

That  af  ti^r  the  making  of  said  note  [or  describe  other  con- 


Actions  Relating  to  Decedent's  Estate.       729 

tract],  and  on  or  about  the day  of ,  18 — , 

the  said  A.  B.  departed  this  life  [*J  intestate,  and  that  the 
defendant,  M.  B.,  as  the  next  of  kin  of  said  A.  B.,  suc- 
ceeded to  the  personal  estate  of  said  A.  B.,  remaining  after 
the  j)ayment  of  the  debts  of  the  said  A.  B.,  to  wit :  to  at  least 

the  sum  of dollars,  which  amount  was  paid  to  said 

M.  B.,  as  such  next  of  kin,  by  C.  P.,  the  administrator  of 
the  goods,  etc.,  of  said  A.  B.,  who  was  duly  appointed  such 

administrator  on  the day  of ,  18 — ,  by  the 

surrogate's  court  of county. 

That  no  presentation  of  the  claim  against  the  estate  of 
said  A.  B.,  above  set  forth,  has  been  made  to  said  admin- 
istrator, and  that  the  said  claim  is  justly  due  and  owing 
to  the  plaintiff,   [f] 

Wherefore  the  plaintiff  demands  judgment  against  said 

defendant  for  the  sum  of dollars,  with  interest 

thereuj)on  from  the day  of ,  18 — .' 

M.  N.,  Plaintiff's  Attorney. 
[Office  address.^] 

[Verification  as  in  forms  Nos.  151,  etc.] 

[Or  in  action  against  legatee,  proceed  as  above  to  (*),  and 
from  thence  as  follows  :  Having  made  and  executed,  in  due 
form  of  law,  his  last  will  and  testament,  which  he  left  un- 
revoked at  his  death,  and  by  which  he  bequeathed  to  the 
defendant  the  sum  of dollars. 

That  oil  the day  of ,  18 — ,  the  said  wall 

was  duly  admitted  to  probate  hj  the  surrogate's  court  of 
county,  and  C.  P.  was  duly  appointed  by  said  sur- 
rogate's court  as  the  executor  thereof. 

That  on  the day  of ,  18 — ,  the  said  ex- 
ecutor paid  to  the  defendant  the  amount  of  said  legacy. 

That  no  presentation  has  been  made  of  the  said  claim 
to  said  executor,  and  that  the  same  is  wholly  unpaid,  and 
is  Justly  due  and  owing  to  tlie  phuntiff." 

That  no  assets  of  said  estate  were  delivered  by  the  said  ex- 
ecutor of,  etc.,  of  said  A.  B.  to  tlie  surviving  husband  {or 
wife),  or  next  of  kin  of  said  A.  B. 

*  See  Selover  v.  Coe  (63  N.  Y.,  438),  of  claim  is  probably  not  necesfiary  iin- 
citing'  Erwin  v.  Loper  (43  id.,  .^itil).  dnr  section  1837  of  Coilf  Civ.  Pro. 
The  allegation  as  to  non-preaontatiou     See  also  Cuiiuiugham  v.  Parker  (14G 

92 


Actions  Relating  to  Decedent's  Estate.        729a 


N.  Y.,  29),  Colgan  v.  Dunne  (50  Hun, 
443),  Hentz  v.  Phillips  (23  Abb.  N.  C, 
15),  Collier  v.  MiUer  (16  N.  Y.  Supp., 
633),  Shell  V.  Muir  (22  State  Rep., 
829),  Armstrong  v.  McKelvey  (104  N. 
Y.,  179,  aff'g-  S.  C,  39  Hun,  213), 
Fink  V.  Berg-  (50  Hun,  211),  Dodge  v. 
Stevens  (94  N.  Y.,  209),  Reed  v.  Lozier 
(48  Hun,  50),  Carpenter  v.  Carpenter 
(14  State  Rep.,  284),  Clift  v.  Moses 
(116  N.  Y.,  144,  aff'g  S.  C,  44  Hun, 
312),  Traud  v.Magnes  (49  N.Y.  Super., 
309),  Hayward  v.  McDonald  (7  Civ. 


Pro.  Rep.,  100),  Mortimer  v.  Cham- 
bers (63  Hun,  335;  43  State  Rep.,  365), 
Read  v.  Patterson  (45  State  R.,  793), 
O'FljTin  V.  Powers  (136  N.  Y.,  412), 
Adams  v.  Fassett  (73  Hun,  430),  Rog- 
ers V.  Patterson  (79  id.,  483),  Brater 
V.  Hooper  (77  id.,  244),  as  to  actions 
by  creditors  against  legatees,  etc., 
under  sections  1837-1860  of  Code  of 
Civil  Procedure.  See  also  note  5  to 
form  No.  853,  Hogan  v.  Cavanaugh 
(138  N.  Y.,  417 ;  139  id.,  620), 
»  See  note  2  to  form  No.  122. 


730  Forms  Relating  to 

(Or  thut  assets  of  said  estate  were  delivered  by  the  said 
executor  of,  etc.,  of  said  A.  B.  to  F.  B.,  the  surviving  hus- 
band, or  M'ife,  of  said  A.  B.,  or  to  J.  C,  next  of  kin  of  said 

A.  B.,  to  the  value,   or  amount,  of  dollars,  but 

that  the  value  of  said  assets  has  been  recovered  from  the 
said  F.  B.,  or  J.  C,  by  C.  M.,  another  creditor  of  said  A. 
B.,  or  that  such  assets,  after  payment  of  the  expenses  of 
the  administration  of  said  estate  and  preferred  demands, 
are  not  sutticient  to  satisfy  the  demand  of  the  plaintiff  above 
set  forth.')] 

[Concluding  as  in  above  form  from  (f).'] 


No.  853. 

Complaint  in  Action  against  Heirs  or  Devisees  for  Debt  of 
Intestate  or  Testator. 

(Code  Civ.  Pro.,  §  1843.) 

As  in  form  No.  852  to  [*],  and  from  thence  as  follows : 
Intestate  leaving  the  said  defendant  his  sole  heir-at-law, 
and  that  as  such  heir-at-law  the  said  defendant  became  en- 
titled to  real  property,  situated  in  the  county  of , 

of  the  value  of dollars,  which  said  real  estate  is 

described  as  follows  [describe  same].' 

That  one  C.  P.  was,  on  the day  of ,  18 — , 

duly  appointed  administrator  of,  etc.,  of  said  A.  B.,  by  the 
surrogate  of county. 

[Here  insert  from  form  below  given  against  devisee  from 
(ft)  to  (ft)]. 

[Conclude  as  in  form  No.  852  from  (f),  adding  as  follows : 

•  See  Code  Civ.  Pro.,  g§  1841,  1842.  Civ.  Pro.,  §  1838;  as  to  apportionment 

*  Where  the  shares  of  the  estate  be-  of  recovery  and  costs  in  joint  action, 
longing  to  infants  have  been  paid  over  see  Code  Civ.  Pro.,  §  1889;  in  a  several 
to  their  general  guardians,  the  action  action,  see  Code  Civ.  Pro.,  §  1840. 

is  properly  brought   against   the  in-  ^  ggg  section  1851,  Code  Civ.  Pro.,  as 

fants,  and  the  judgment  should  direct  to  description  and  statement  of  value, 

the  money  to  be  paid  out  of  the  funds  Also,  Parsons  v.  Bowne  (7  Paige,  354), 

in  the  hands  of  the  guardians.     (Mer-  as  to  discovery  where   property  was 

chants'  Ins.  Co.  of  N.  Y.  v.  Hinman,  unknown  under  the  former  procedure, 

34  Barb.,  410;  S.  C,  13  Abb.  Pr.,  110.)  and  see  Code  Civ.  Pro.,  §g  870,  872, 

As  to  parties  to   action,   see  Code  for  present  relief  in  such  case. 


Actions  Relating  to  Decedent's  Estate.       731 

And  that  the  said  debt  of  the  plaintiff  be  collected  out  of 
the  real  property  above  described.'] 

[Or  in  action  against  devisee  proceed  as  in  form  No.  852 
to  (*),  and  from  thence  as  follows :  Having  made  and  exe- 
cuted in  due  form  of  law  his  last  will  and  testament,  which 
he  left  unrevoked  at  his  death  and  by  which  he  devised  to 
the  defemdant  certain  real  property,  situated  in  the  county 

of ,  described  as  follows  (describe  same),  which  said 

real  estate  is  of  the  value  of dollars.' 

Tliat  on  the day  of ,  18 — ,  the  said  will 

was  duly  admitted  to  probate  and  record  as  a  will  of  real 

and  personal  estate  by  the  surrogate's  court  of  

county,  and  C.  P.  was  on  that  day  duly  appointed  as 
executor  thei'eof  {or  allege  the  non-issue  of  lettei's  within 
the  State,  and  that  three  years  have  elapsed  since  the  death 
of  the  testator).' 

That  the  said  claim  is  wholly  unpaid  and  is  justly  due 
and  owing  to  the  plaintiff. 

(ft)  If  there  were  no  assets  say :  That  said  A.  B.  left  no 
personal  assets  within  the  State  to  be  administered  ;  or  say, 
that  the  assets  of  said  A.  B.  within  the  State  were  not  suffi- 
cient to  pay  the  plaintiff's  debt,  in  addition  to  the  expenses 
of  administration,  and  debts  of  a  prior  class. 

{Or  that  the  plaintiff  has  been,  or  will  be,  unable,  with 
due  diligence,  to  collect  the  amount  of  said  claim  by  pro- 
ceeding in  the  proper  surrogate' s  court,  to  wit :  in  the  surro- 
gate's  court  of county,  and  by  action  against  the 

said  executor  and  against  the  surviving  husband,  or  wife, 
of  said  A.  B.,  or  the  legatees  or  next  of  kin  of  said  A.  B.*) 

(ft)  That  the  real  property  of  said  A.  B.,  which  descended 
to  his  heirs,  was  not  sufficient  to  pay  the  said  debt  of  the 
plaintiff  {or  that  the  plaintiff  has  been  unable,  or  will  be 
unable,  with  due  diligence,  to  collect  his  said  debt  by  an 
action  against  the  heirs  of  the  said  A,  B.).'] 

[Conclude  wiCh  prayer  for  judgment  as  in  above  form,] 

'  See  section  1852,  Code  Civ.  Pro.,  as  to  time  within  which  action  must 
as  to  this  prayer.  As  to  effect  of  be  brought.  See,  also,  Malloy  v.  Van- 
judgment,  see  that  section  and  se(;tion  d(!rl)ilt  (4  Abb.  N.  C,  127),  O'FIynn 
1853,  id.,  and  see  Cunningham  v.  v.  Powers  (13(5  N.  Y.,  412),  Adams  v. 
Parker  (140  N.  Y.,  29) ;  Rogers  v.  Pat-  Fjussett  (73  Hun,  403). 
terson  (87  Hun,  219).  *  See  section  1848,  Code  Civ.  Pro. 

*  See  note  3,  page  730.  '  See  section  1849,  Code  Civ.  Pro., 

•See  section  1844,  Code  Civ.  Pro., 


732 


Forms  Hklating  to 


No.  854. 

Answer  by  Heir  or  Devisee  of  Nothing  Received  by  Descent 

or  Devise. 

(Code  Civ.  Pro.,  §  1843.) 

And  the  defendant  [furtlier]  answering  the  complaint  in 
this  action,  says,  that  he,  the  said  defendant,  has  not,  at 
the  time  of  the  commencement  of  this  action,  nor  at  any 
time  before  or  since,  had  any  real  property  or  interest 
therein  by  descent  [or  by  (effectual)  devise]  from  the  said 
A.  B.,  deceased. 


No.  855. 

Final  Judgment  in  Action  for  Recovery  from  Heir  or 
Devisee  of  Debt  of  Decedent. 

(Code  Civ.  Pro.,  §§  1852,  1854.) 

As  in  general  form  of  judgment  for  plaintiff.  No.  457, 
adding,  where  any  of  the  real  property  descended  or  de- 
vised to  defendant  has  not  been  aliened  by  him  at  the  time 
of  the  commencement  of  the  action,  as  follow^s :  And  it  is 
further  adjudged  and  directed,  that  the  said  amount  be  col- 
lected out  of  the  real  property,  w^hich  has  descended  [or 


as  to  these  allegations  in  action  against 
devisee. 

As  to  deductions  for  prior  recoveries, 
see  section  1850,  Code  Civ.  Pro. 

The  action  must  be  brought  jointly 
against  all  the  heirs  to  whom  any  real 
property  descended,  or  jointly  against 
all  the  devisees.  (Code  Civ.  Pro.,  § 
1846;  see,  also,  Kellogg  v.  Olmsted, 
6  How.  Pr.,  487;  Cassidy  v.  Cassidy, 
1  Barb.  Ch.  R.,  467.) 

A  defendant  cannot  be  charged  both 
as  heir-at-law  and  next  of  kin  in  the 
same  count  of  a  complaint.  (Arm- 
strong V.  "Wing,  10  Hun,  520. 

The  hell's  or  devisees  and  personal 
representatives  cannot  be  joined  in 
one  suit.  (Stuart  v.  Kissam,  11  Barb., 
271 ;  Mersereau  v.  Ryerss,  3  N.  Y.,  262 ; 
Iveene  v.  Martine,  27  Hun,  246).    But 


see,  also,  Code  Civ.  Pro.,  g  1860,  modi- 
fying these  decisions. 

As  to  recovery,  under  article  2,  title  3, 
chapter  8,  part  3  of  R.  S. ,  by  creditor  of 
a  decedent,  against  the  persronal  repre- 
sentative of  a  devisee,  or  heir  of  such 
decedent  who  has  aliened  the  real  prop- 
erty devised  or  descended  to  him,  see 
Traud  v.  Magnes  (18  "Week.  Dig.,  19). 
That  article  is  repealed  by  chapter  245 
of  1880. 

See,  also,  cases  referred  to  in  note  1 
to  form  No.  852,  and  Blossom  v.  Hat- 
field (24  Hun,  275),  Mead  v.  Jenkins 
(27  Hun,  570),  Rogers  v.  Patterson  (87 
Hun,  219). 

See,  as  to  stay  of  proceedings  in  suit 
when  application  has  been  made  to 
surrogate's  court  for  disposal  of  real 
property  to  pay  debts  of  decedent,  and 
as  to  further  proceedings  in  the  action 
in  that  case,  Code  Civ.  Pro.,  §  1845. 


Actions  Relating  to  Decedent's  Estate.       733 

been  devised]  to  the  defendant  from  [o?'  by]  said  A.  B.,  de- 
scribed as  follows  [describe  same].' 


Akticle  Third. 

FORMS  RELATING   TO  ACTION  TO  ESTABLISH  OR  IMPEACH  A 

WILL. 

(Code  Civ.  Pro.,  Ch.  15,  Tit.  3,  Art.  3.) 

No.  856.     Complaint,  under  subd.  1  of  section  1861,  Code  Civil  Procedure,  in 
action  to  establisli  will, 

857.  Complaint,  under  subd.  2  of  section  1861,  Code  Civil  Procedure,  in 

action  to  establish  will. 

858.  Final  judgment  that  will  be  established. 


No.  856. 

Complaint,  under  Subd.  1  of  Section  1861,  Code  Civil  Pro- 
cedure, in  Action  to  Establisli  a  Will. 

[Title  of  cause.] 

The  complaint  of  the  above  named  plaintiff  respectfully 

shows,  that  lately,  and  on  or  about  the  day  of 

,  18—,  M.  F.  died  at  the of ,  in 

the of ,  in  which  place  he  then  resided. 

That  in  his  life- time,  and  on  or  about  the day 

of ,  18 — ,  the  said  M.  F.  duly  made  and  published 

his  last  will  and  testament  which  relates  to  [both  real  and] 
personal  estate,  and  by  which  he  gave  and  bequeathed  to 

the  plaintiff  a  legacy  of dollars,  as  by  the  said  will, 

a  copy  of  which  is  hereto  annexed  and  marked  schedule  A, 
will  more  fully  appear. 

[Or  in  case  a  copy  of  the  will  cannot  be  obtained,  say  after 
word  "dollars,"  as  follows  :   That  the  said  will  was  in  sub- 

'  As  to  apportionment   among  de-  a  final  judement  against  him  for  the 

fendantaof  amount,  see  Code  Civ.  Pro.,  value  of  the   property  aliened,  or  so 

§  1847;  Fink  v.  Berg  (.50  Hun,  211).  much  thereof  as  may  be  necessary,  as 

If  it  appears  that,  before  the  com-  in  an  action  for  the  defendant's  own 

mencement  of    the   action,    or  after-  debt.     (Code  Civ.  Pro.,  g  1854.) 

wards  and  before  the  filing  of  a  notice  As  to  preference  under  judgment, 

of  pendency  of  the  action,  the  defend-  see  Code  Civ.  Pro.,  |:5  1852. 

ant  aliened  the  real  property  descended  See,  also,  Code  Civ.  Pro.,  gg  1855- 

or  devised  to  liim,  or  any  part  thereof,  1861. 
the  plaintiff  may,  at  his  election,  take 


734  PoKMS  Relating  to 

stance  and  to  the  eifect  following,  according  to  the  best 
of  deponent's  knowledge,  information  and  belief  (state 
substance  of  will).]  [;^] 

That  the  said  M.  F.  subscribed  his  said   last  will  and 

testament  at  the  end  thereof,  on  the  said day  of 

,  18 — ,  in  the  presence  of  E.  F.   and  G.  H.,  two 

attesting  witnesses,  and  at  the  same  time  of  making  said 
subscription  declared  the  said  instrument  so  subscribed  by 
him  to  be  his  last  will  and  testament,  in  the  presence  of 
said  witnesses,  and  requested  each  of  said  witnesses  to  sign 
his  name  at  the  end  thereof,  which  they  accordingly  did  in 
his  presence  and  in  the  presence  of  each  other. 

That  the  said  testator,  at  the  time  of  executing  the  said 
will,  was,  in  all  resxjects,  competent  to  make  a  will  and  not 
under  restraint. 

That  said  original  will  is  in  the  • of and 

cannot  be  obtained  for  the  purpose  of  being  admitted  to 
probate,  under  the  laws  of  the  State  of  New  York  in  a  sur- 
rogate's court,  for  the  reason  that  [state  reason]. 

[Or  that  said  original  will  was  in  existence  at  the  time  of 
the  testator's  death,  but  has  been  lost  {or  destroyed)  since 
that  time  by  accident  (o?'  design)  {or  was  fraudulently  de- 
stroyed during  the  testator's  life-time,  stating  facts  consti- 
tuting the  fraud),  and  before  it  was  duly  proved  and  recorded 
within  this  State.']  [f] 

That  the  defendants  [naming  them]  are  the  heirs-at-law 
and  next  of  kin  of  said  M.  F. 

That  said  M.  F.  died,  leaving  personal  property  in  the 

county  of ,  in  the  State  of  New  York,  which  said 

personal  property  still  is,  and  remains  in,  said  county  un- 
administered,  and  that  while  said  property  remains  unad- 
ministered  upon,  the  plaintiff  cannot  obtain  payment  of 

•By  section  1865,   Code  Civ.  Pro.,  84  N.  Y.,  643),  Early  v.  Early  (5  Redf., 

the  plaintiff  is  not  entitled  to  a  judg--  376),  McNally  v.  Brown  (5  Redf.,  372). 

ment  establishing-  a  lost  or  destroyed  In  re  Demmert  (5  Redf.,  299).     Also  as 

will,  unless  the  will  was  in  existence  at  to  probate  of  lost  or  destroyed  will  in 

the  time  of  the  testator's  death,  or  was  surrogate's  court,  see  Code  Civ.  Pro., 

fraudulently  destroyed  in  his  life-time,  §  2621,  and  forms  under  that  section, 

and  its  provisions  are  clearly  and  dis-  And   see  Anderson  v.  Anderson   (112 

tinctly  proved  by  at  least  two  credible  N.  Y.,  104),  Hewitt  v.  Hewitt  (28  State 

witnesses,  a  correct  copy  or  draft  be-  Rep.,  251),  Perry  v.  Perry  (49  State 

ing  equivalent  to  one  witness.     See,  Rep.,  291),  Colby  v.  Colby  (81  Hun, 

also,  Sheridan  v.  Houghton  (16  Hun,  221). 
628;  S.  C,  6  Abb.  N.  C,  234  ;  aff'd. 


Actions  Relating  to  Decedent's  Estate.       735 

the  amouut  of  his  said  legacy  [w  state  other  circumstances 
which  render  it  necessary  that  such  Avill  should  be  admitted 
to  probate  and  record]. 

Wherefore  this  plaintiff  asks  that  said  will  be  adjudged 
and  decreed  to  be  the  last  will  and  testament  of  the  said 
M.  F.,  and  be,  by  the  judgment  of  this  court,  established 
as  such  [and  that  it  be  ordered  and  decreed  by  this  court, 
that  an  exemplified  copj'  of  said  will  be  transmitted  to  the 

surrogate  of county,  and  that  the  same  be  recorded 

in  his  office,  and  that  letters  testamentary  or  letters  of  ad- 
ministration, with  the  will  annexed,  be  issued  thereupon 
from  his  court,  in  the  same  manner,  and  with  like  effect,  as 
upon  a  will  duly  proved  in  that  court],'  and  that  the  plain- 
tiff may  have  such  other  and  further  relief  as  may  be  proper 
and  necessary  in  the  premises." 

F.  P.,  Plaintiff'' s  Attorney. 
[Office  address.'] 


No.  857. 

Complaint  under  Subd.  2  of  Section  1861,  Code  Civil  Pro- 
cedure, in  Action  to  Establish  a  Will. 

(Code  Civ.  Pro.,  §  1881,  subd.  2.) 

As  in  last  form  to  [*],  omitting  the  words  [both  real  and] 
therefrom,  and  continue  as  follows  : 

That  said  M.  F.  [set  forth  manner  of  execution  of  will]. 

Tiiat  said  will  was  duly  execMited  according  to  the  laws 

of  the of ,  in  which  it  was  executed  [or  in 

which  the  testator  resided  at  the  time  of  his  death],  the 
statute  of  which  State,  etc.,  relating  to  the  execution  of 
wills,  is  as  follows  [set  forth  same],'  and  that  the  said  will 
cannot  be  admitted  to  probate  in  a  surrogate's  court,  under 
the  laws  of  this  State,  by  reason  of  the  following  facts  [set 
forth  same]. 

[Then  continue  as  in  form  No.  856  from  (f),  to  end  thereof.'] 

'  See  Code  (Mv.  Pro.,  §  1863,  as  to        »  See  note  2  fo  form  No.  122. 
ca.se8  in  whidi  this  rolief  may  be  had.        *  See  as  to  manner  of  iili-jKnni,'  the 

"See  Younger  V.  Duffle  (94  N.  Y.,  statute  law  of  foreign   State,  Holmes 

Sa*);  S.  C.  18  Week.   Dig..  ?m\  aff'g  v.   Brougliton  HO  Wend.,  7r.),  Tbroop 

S.  C,  28  Plun,  242;  16  Week.  Dig.,  M).  v.  Ilalch  (B  Abb.  Pr..  53).  Phmney  v. 


736  Forms  Relating  to 

No.  858. 
Filial  Judgiiieiit  that  Will  be  Establisliedc 

(Code  Civ.  Pro.,  §  1862.) 

As  in  form  No.  457  to  [^],  and  from  thence  as  follows : 
Tliat  tlie  last  will  and  testament  of  M.  F  ,  as  set  forth  in  the 

complaint  in  this  action,  dated ,  18 — ,  of  which  the 

following  is  a  copy,  to  wit  [insert  copy  of  will]  [or  the  sub- 
stance of  whicli  is  as  follows  (state  same)],'  be  and  the  same 
is  hereby  adjudged  to  be  and  established  as  the  last  will 
and  testament  of  the  said  M.  F,,  and  relating  to  [both  real 
and]  personal  property. 

[And  it  is  further  adjudged  and  decreed,  that  an  exem- 
plified copy  of  said  will  be  transmitted  to  the  surrogate  of 

county,  and  that  the  same  be  recorded  in  his  office, 

and  that  letters  testamentary,  or  letters  of  administration, 
with  the  will  annexed,  be  issued  thereupon  from  his  court 
in  the  same  manner,  and  with  like  effect,  as  upon  a  will 
duly  proved  in  that  court.*] 

[Add  any  provisions  as  to  costs.] 


TITLE  IV. 

FORMS  RELATING  TO   OTHER   SPECIAL  ACTIONS  AND  RIGHTS 

of  action  . 
Article  First. 

FORMS  RELATING  TO  JUDGMENT  CREDITOR'S  ACTION. 
(Code  Civ.  Pro.,  Cli.  15,  Tit.  4,  Art.  1.) 

No.  859.     Complaint  in  action  by  judgment  creditor. 

860.  Complaint  by  judgment  creditor  in  action  to  set  aside  a  chattel 

mortgage  given  by  corporation  in  contemplation  of  insolvency. 

861.  Complamt  against  judgment  debtor  and  his  trustee,  to  reach  the 

trust  fund  or  the  income  thereof. 

Phinney  (17  How.  Pr.,  197),  Phillips  ^  See  notes  to  form  No.  856. 

V.  James  (3  Robt.,  720  ;  8.  C,  1  Abb.  *  By  section  1864,  Code  Civ.  Pro.,  a 

[N.  S.  I,  311),  Kip  V.  McLean   (2  Civ.  copy  of  the  will,   or,  if  it  is  lost  or 

Pro.  Rep.  [McCarty],  166  ;   S.  C,  15  destroyed,     the     substance     thereof, 

"Week.    Dig'.,    169),    Cambeis    v.    Mc-  must  be  incorporated  into   the   final 

Donald   [No.  2],    ^2  State  Rep.    130),  judgment. 

Robarge  v.  Central  Vermont  R.  R.  Co.  '  See  section  1863,  Code  Civ.  Pro., 

(18  Abb.  N.  C,  363),   Angell  v.  Van  as  to  cases  in  which  this  last  clause  in 

Schaick  (56  Hun,  247),  Fagan  v.  Strong  brackets  is  to  be  inserted. 

(17  Civ.  Pro.  R.,  438),  Rothschild  v.  See,   also,  section  1865,  Code  Civ. 

Rio  Grande  "Western  R.  Co.  (59  Hun,  Pro.,  cited  in  note  1  to  form  No.  856. 

454);  26  Abb.  N.  C.  315. 


Judgment  Creditoe's  Action.  737 

No.  862.     Complaint  against  judgment  debtor  and  liis  assignee  to  set  aside 
assignment. 

863.  Complaint  against  judgment  debtor  to  set  aside  a  fraudulent  judg- 

ment and  sale. 

864.  Final  judgment  in  judgment  creditor's  action. 

865.  Final  judgment  iu  judgment  creditor's  action  setting  aside  and  de- 

claring void  a  fraudulent  incumbrance. 

866.  Final  judgment    in    action    by  judgment  creditor,    setting  aside 

fraudulent  conveyance. 

867.  Final  judgment  in  judgment  creditor's  action  dismissing  complaint, 

with  costs  to  be  set  off. 

868.  Petition  by  judgment  creditor  for  leave  to  come  in  as  a  party  to 

creditor's  action. 

869.  Order  upon  petition  granting  petition  for  leave  to  come  in  as  a 

party  to  creditor's  suit. 

870.  Notice  of  application  for  injunction  order  and  order  to  show  cause 

against  injunction  on  creditor's  complaint. 

871.  Same,  as  last  form  with  clause  for  appointment  of  receiver. 
873.     Injunction  order  in  action  by  judgment  creditor. 

873.  Order  of  reference  to  appoint  receiver  in  judgment  creditor's  action. 

874.  Bond  of  receiver  in  jadgment  creditor's  action. 

875.  Order  appointing  referee  to  take  examination  of  judgment  debtor, 

and  to  direct  assignment  and  delivery  of  his  property,  and  con- 
veyance of  his  real  estate. 

876.  Assignment  to  receiver  in  creditor's  suit. 

877.  Xotice  of  motion  for  leave  to  make  a  supplemental  complaint  in 

judgment  creditor's  action. 

878.  Affidavit  on  motion  for  leave  to  make  supplemental  complaint  in 

judgment  creditor's  action. 

879.  Order  granting  leave  to  make  supplemental  complaint  in  judgment 

creditor's  action. 

880.  Supplemental  complaint  in  judgment  creditor's  action. 


No.  859. 
Complaint  in  Action  l)y  Judgment  Creditor. 

(Code  Civ.  Pro.,  §  1871.) 

[Title  of  cause.] 

The  complaint  of  the  above  named  plaintiff  [on  behalf  of 
himself  and  all  other  judgment  creditors  of  the  defendant 
(whose  executions  have  been  issued  and  returned  unsatis- 
fied, and),  who  shall,  in  due  time,  come  in  and  seek  relief 
by,  and  contribute  to,  the  expenses  of  tliis  action]'  resj^ect- 
fully  shows,  that  on  the day  of  ,  18 — ,  the 

'  See  Edmeston  v.  Lyde  (1  Paige,     037),  Mattison  v.  Demarest  (19  Abb.» 

356;  2  Barb.  Ch.  Pr.  154). 

93 


738  Forms  Relating  to 

plaintiff,  duly  recovered  a  judgment  against  the  defendant, 
C.  D.,  in  the  Supreme  Court  of  the  State  of  New  York  [or 

name  other  court  {or  before  a justice  of  the  peace 

in  and  for  the  town  of )],  for  the  sum  of  

dollars  and cents,  damages  and  costs. 

That  the  judgment  roll  upon  said  judgment  was  duly- 
filed  in  the  county  clerk's  office  of county,  in  which 

county  said  action  was  triable  [or  name  other  clerk's  office], 
on  the  said day  of ,  18—,  and  said  judg- 
ment was  duly  docketed  in  said  clerk's  office  on  that  day. 

[That  a  transcript  of  said  judgment  was  duly  hied;  and 

said  judgment  duly  docketed,  in  the county  clerk's 

office,  on  the day  of ,  18 — .] 

That  an  execution  against  the  property  of  said  C.  D.  was, 

on  the  day  of ,  18—,  duly  issued  out  of 

the  [said] Court,  ui:>on  said  judgment,  to  the  sheriff 

of  the  said  county  of ,  in  Vhich  county  said  C.  D. 

then  resided  and  has  resided  ever  since  [and  now  resides].* 

[Or  in  which  county  the  said  C.  D.  then  had  (and  now 
has)  an  office  for  the  regular  transaction  of  business  in  per- 
son {or  in  which  said  judgment  roll  was  filed  as  aforesaid ; 
or  in  which  a  transcript  of  said  judgUient  was  filed  as  afore- 
said), said  C.  D.  not  being  at  the  time  of  the  issuing  of  said 
execution,  or  at  the  time  of  the  commencement  of  this  ac- 
tion, a  resident  of  the  State  of  New  York  (and  not  having 
at  either  of  the  times  last  aforesaid  an  office  for  the  regular 
transaction  of  business,  in  person,  therein),  but  then  (and 
now),  being  a  resident  of ,  in  the  State  of ,'] 

That  said  execution  has  since,  and  on  or  about  the 

day  of ,  18 — ,  been  returned  by  said  sheriff  to  the 

said  county  clerk's  office,  wholly  unsatisfied  [or 

unsatisfied  to  the  amount  of dollars],  and  that  there 

still  remains  due  and  unpaid,  upon  said  judgment,  the  sum 
of dollars.  [*] 

And  the  plaintiff  further  alleges,  that  at  the  time  of  the 
recovery  of  the  judgment  above  mentioned  against  the  said 
C.  D.,  the  said  C.  D.  was,  and  for  several  years  previous 

•Seesubd.  1  of  section  1872,  Code  N.    Y.    241),    Capital    City    Bank   v. 

Civ.  Pro.     The  execution   must  issue  Parent   (34   State  Rep.,    856  ;   47  id., 

out  of  a  court  of  record.     (§  1871,  id.)  643),  Kerr  v.  Delaney   (GO  Hun,  315), 

See  "Weaver  v.  Haviland  (142  N.  Y.,  Galle  v.  Tode  (38   State   Rep.,   362), 

534  ;   aff' g  S.   C,  68  Hun,   376) ;   Le  Iselin  v.  Henlein  (16  Abb.  N.  C,  73). 

FevT-e V.Phillips (81  Hun, 232), Prentiss  "See  subd.  2  of  section  1872,  Code 

V.  Bowden  (145  N.  Y.,  342),  National  Civ.  Pro. 
Tradesmen's  Bank  v.  "Wetmore   (124 


Judgment  Creditok's  Action.  739 

thereto  has  been,   engaged  in  mercantile  business  at  the 

of ,  and  that  in  the  course  of  the  said 

mercantile  business  of  the  said  defendant,  divers  persons 
became  indebted  to  him  to  a  large  amount,  and  that  the 
said  defendant  has,  at  the  time  of  the  commencement  of 
this  action,  debts  due  to  him,  and  for  which  he  holds  divers 
securities  and  evidences  to  a  large  amount,  and  has  divers 
goods,  wares  and  merchandise,  or  other  articles  of  personal 
property,  which  belong  to  him,  or  in  which  he  is  in  some 
way  or  manner  beneficially  interested,  and  that  he  has 
equitable  interests  and  things  in  action  of  some  nature  or 
kind,  which  might  and  ought  to  be  applied  to  the  payment 
of  the  plaintiff's  said  judgment. 

And  plaintiff  further  alleges,  upon  information  and  be- 
lief, that  the  said  C.  D.  has  property,  debts  and  other 
equitable  interests,  things  in  action  or  effects,  and  which 
the  plaintiff  has  been  unable  to  reach  by  execution  on  the 
said  judgment. 

And  that  this  action  is  not  brought  by  collusion  with  the 
defendant,  or  with  any  other  person,  or  for  the  purpose  of 
protecting  the  jDroperty  or  effects  of  the  said  defendant 
against  the  claims  of  other  creditors,  but  for  the  sole  and 
only  purpose  of  comxDelling  j)ayment  and  satisfaction  of 
said  judgment. 

Wherefore  the  plaintiff  demands  judgment  and  relief, 
tliat  a  discovery  be  compelled  of  any  thing  in  action  or 
other  iDroperty  belonging  to  the  said  C.  D.,  and  of  any 
money,  thing  in  action,  or  other  i;)roperty  due  to  him  or 
held  in  trust  for  him,  except  of  such  j^roperty  as  is  by  law 
excepted  from  such  discovery ; '  and  that  the  transfer 
thereof,  and  the  payment  or  delivery  thereof  to  him,  or  to 
any  other  person,  may  be  i)revented  ;  and  that  the  jjayment 
and  satisfaction  of  plaintiff's  said  judgment  may  be  pro- 
cured out  of  any  money,  tiling  in  action  or  other  personal 
property  belonging  to  or  due  to  the  said  defendant,  C.  D., 
or  lield  in  trust  for  him,  which  is  discovered  in  this  action,' 
including  the  interest,  if  any,  of  the  said  defendant,  in  a 


'  As  to  how  such  discovery  may  bo    Pro.,  and  sec  section  187!)  (id.)  hh  to 
compelled,  sec  section  1878,  Code  Civ.     property  excepted. 

'  See  section  1878.  Code  Civ.  Pro. 


740  Forms  Relating  to 

contract  for  the  piircliase  of  real  property  by  Mm,  in  the 
manner  required  by  law. ' 

That  an  injunction  may  be  granted,  restraining  the  trans- 
fer to  any  person,  or  the  payment  or  delivery  to  the  said 
C.  D.,  of  any  money,  thing  in  action  or  other  property  or 
interest,  which  may,  by  the  provisions  of  article  hrst  of 
title  fourth  of  chapter  fifteenth  of  the  Code  of  Civil  Pro- 
Procedure,  be  applied  to  the  satisfaction  of  the  sum  due  to 
the  plaintiff.' 

That  a  receiver  may  be  appointed  of  the  property  of  the 

said  judgment  debtor,  and  that  the  said  C.  D.,  and  any 

other  defendant  in  this  action,  convey  or  deliver  to  the  said 

receiver,  as  justice  requires,  any  propertj^  real  or  personal, 

book,  voucher  or  other  pai^er,  or  to  execute  any  instrument 

which  this   court  may  deem   necessary  for  perfecting  or 

assuring  the  said  receiver's,  title  and  possession  ;'  and  that 

the  plaintiff  may  have  his  costs  of  this  action,  and  such 

other  and  further  relief  as  may  be  proper  and  agreeable  to 

equity.* 

M.  N.,  Plaintiff'' s  Attorney. 

[Office  address.'] 

[Verification  as  in  forms  Nos.  151,  etc.] 

*  See  sections  1874  and  1875,  Code  N.  C,  20,  Tiote,  Parks  v.  Murray  (2 
Civ.  Pro.  State  Rep.,  628),  Popfing-er  v.  Yutte 

*  See  sections  603,  1876,  Code  Civ.  (102  N,  Y.,  38),  Green  v.  Griswold  (23 
Pro.,  as  to  injunction,  and  forms  under  State  Rep.,  218),  Decker  v.  Decker  (108 
article  first  of  title  second  of  chapter  N.  Y.,  128),  Andrews  v.  Whitney  (82 
seventh  (id.),  pag-e  142  {ante).  Hun,  117). 

'  See  section  1877,  Code  Civ.  Pro.,         The  right  acqinred  by  a  patentee 

as  to  appointment  of  receiver,  etc.,  and  may  be  reached  by  a  judg-ment  credi- 

forms  under  chapter  7,  title  4,  article  tor's  action,  but,  it  seeins,  that  an  un- 

1  (id.),  pag-e  208  {ante)  ;  also,  Young  v.  patented  invention  cannot  be  reached. 

Heermans  (66  N.  Y.,  374;  modifying  (Gillett  v.  Bate,  86  N.  Y.,  87;  Ag-er 

S.  C,  5  Hun,  121),  Shand  v.  Hanley  v.  Murray,  105  U.  S.   [15  Otto],  126, 

(71  N.  Y.,  319),  State  Bank  of  Syra-  131). 

euse  V.  Gill  (23  Hun,  410),  Keiley  v.         In  an  action  ag-ainst  three  copartners 

Dusenbury  (77  N.  Y.,  597  ;  afl"'g  S.  C,  upon  a  partnership  obligation  the  .sum-' 

42  N.  Y.  Super.  Ct.,  238).  inons  was  served  iipon  two,  and  judg- 

*  As  to  reaching  surplus  in  the  hands  ment  was  perfected  by  default  against 
of  trustees  for  the  benefit  of  the  judg-  the  two  served.  An  execution  was 
ment  debtor,  above  what  is  necessary  issued  against  the  joint  property  of  all 
for  his  sujjport  and  maintenance,  etc.,  the  defendants  and  returned  unsatis- 
see  McEvoy  v.  Appleby  (27  Hun,  44),  tied.  Held,  that  plaintiff  had  suffi- 
Williams  v.  Thorn  (70  N.  Y.,  270),  ciently  exhausted  its  remedy  under 
Kilroy  v.  "Wood  (42  Hun,  636),  Gilford  section  294,  Code  of  Procedure,  to  en- 
v.  Rising  (51  id.,  1),  Masten  v.  Ammer-  title  it  to  proceed  in  equity  to  reach 
man  (i.l.,  244),  Tolles  v.  Wood  (99  joint  property.  (Produce  Bank  v. 
N.  Y.,  616),  Myer  v.  Thomson  (35  Hun,  Morton,  67  N.  Y.,  199.)  See  Code  Civ. 
561),  Stow  V.  Chapin  (21  State  Rep.,  Pro.,  §§  1871,  2461,  and  see  Lewishon 
38),    Scoville    v.    Halliday    (16   Abb.  v.  Drew  (15  Hun,  647). 

N.   C.  43  ;    36   Hun,  165) ;    16  Abb.        See,  also,  Burnett  v.  Gould  (27  Hun, 


Judgment  Creditor's  Action.  741 

No.  860. 

Complaint  by  Judgment  Creditor  in  Action  to  Set  Aside  a 
Chattel  Mortgage  Given  by  Corporation  in  Contempla- 
tion of  Insolvency. 

(Code  Civ.  Pro.,  §  1871.) 
[Title  of  cause.] 

The  plaintiff  complains  of  the  defendants  and  alleges 
[that  the  plaintiff  is  a  domestic  corporation,  under  the  laws 
of  the  United  States,  doing  business  as  a  banking  corpora- 
tion in  the of .] 

That  the  defendant,  R.  &  Co.,  is  [also]  a  domestic  corpora- 
tion incorporated  under  the  statute  of  this  State  authorizing 
corporations  for  manufacturing  and  other  purposes,  passed 
February  17,  1848. 

That  on  the day  of ,  18 — ,  the  plaintiff 

recovered  a  judgment  in  the  Supreme  Court  of  this  State 
against  said  R.  &  Co.  for  the  sum  of dollars. 

That  the  said  judgment  was  duly  docketed  in  the  county 

of on  the  day  on  which  it  was  recovered,  and  that 

an  execution  was  issued  in  due  form  on  the  said  judgment 
against  the  real  and  personal  projoerty  of  the  said  defend- 
ant, R.  &  Co.,  to  the  sheriff  of county,  in  which 

county  the  said  defendant,  R.  &  Co.,  carried  on  and  had 
its  principal  place  of  business,  and  that  the  said  execution 

is  still  outstanding  in  the  hands  of  the  sheriff  of 

county,  by  whom  the  plaintiff  is  informed  and  believes  that 
there  are  no  assets  of  the  said  R.  &  Co.  other  than  those 
hereinafter  mentioned  to  satisfy  the  said  judgment  of  this 
plaintiff  ;  that  the  said  judgment  of  the  plaintiff  was  recov- 

366),  Grouse  v.  Frothingham  (27  Hun,  Super.  Ct.,  279),  First  Nat.  Bank  of 

123),  Southard  v.  Benner  (72  N.  Y.,  Jersey  City  v.  Miller  (4  Month.   Law 

424),  Sturges  v.  Vanderbilt  (73  N.  Y.,  Bui.,  92),  Peyser  v.  Halsted  (5  N.   Y. 

384;  aff'gS.  C,  11  Hun,  130),  Hast-  Supp.,  827),  Royer  Wheel  Co.  v.Field- 

inga  V.  Drew  (76  N.  Y.,  9),  Bergen  v.  ing  (101  N.  Y.,  504  ;    rev'g  S.   C,  31 

Carman   (79   N.  Y.,  146;  rev'g  S.  C,  Hun,  294),  Mead  v.  Stratton  (20  Week. 

8uh   twin.    Snedeker  v.  Snedeker,  18  Dig.,  44),  Lichtenberg  v.    Hcrtl'elder 

Hun,  3.^.'>),  Raynorv.  Gor<lon(16Hun,  (33   Hiui,    57  ;  aff'd  103   N.  Y.,   202), 

126),  Gillett  V.  Staples,  (16  Hun,  .587),  Stokes  v.  Anunennan  (121  N.Y.,  337). 

Genesee  R.    Nat.    Bank  v.  Mead  (18  Putzel    v.-  Schulhoir  (36   State    Rej... 

Hun,  303),  Mead  v.  Sti'atton  (20  Week.  430),  Mc^Donald  v.  McDoiuild  (;X\  State 

Dig.,  44),  Estes  V.  Wileox  (67  N.   Y..  Rep.,  39),  Fuller  Klectrical Co.  v. Lewis 

264;  21  W.   D.,  42),  K<-rr  v.   Dildine  (101  N.  Y.,  674),   Kitehen  v.   Lowery 

(6  State  Rep  ,  163),  Bank  of  Montreal  (127  N.  Y.,  53),  Hart  v.  Albright  (28 

V.  Gleason  (14   Civ.    Pro.    Rep.,   377),  Al)b.  N.  C,  74).  Roniaine  v.  Chauncey 

Fox  V.    Hodge  (17  Week.    Dig.,  412),  (129  N.  Y.,  566;  afr'g>i-  C.,  60  Hun. 

Niver  V.  CraiK!  (OS  N.   Y.,    40),   (Jar-  477),  Kt.ehler  v.   Olson    (CS   lluii,    ('.3), 

denier  V.   Fuicy  (50  Hun,  K2),   King-  Hyih;  v.  Houston  (01  Stab- Roj)..  330), 

man  v.  Frank  (33  Hun,   471).   Hai-ron  Andniws  v.  Wliitiioy  (H'J  Jliin,  117). 

V.  Brurnmer  (100  N.  Y.,  372),  Piatt  v.  The  action  will  not  li(!  liy  ajmlgnient 

Jones  (96  N.  Y.,   24  ;  afl'g  S.  C,  49  ereditor,   where  more  than  ten  ycarH 


742  Forms  Relating  to 

ered  against  said  defendant,  R.  &  Co.,  upon  [a  promissory 
note  on  which  the  said  defendant,  R.  &  Co.,  had  become 
liable  to  the  plain tilf  as  indorser  (^or  maker)  thereof],  and 
that  tlie  plaintiff  has  advanced  and  paid  to  the  said  R.  & 
Co.  the  sum  recovered  in  said  judgment  for  principal  and 
interest  as  specified  in  said  judgment. 

Tliat  there  is  now  due  upon  the  judgment  aforesaid  to  the 
plaintiff  the  said  sum  recovered  thereby,  together  with  in- 
terest from  the  date  of  the  said  judgment,  upon  the  said 
amount  thereby  recovered. 

That  the  said  defendant,  R.  &  Co.,  on  the  day 

of  ,    18 — ,    was   and  for  a  long   time  previously 

thereto  had  been  carrying  on,  in  the of , 

the  business  of  manufacturing  and  selling  merchandise,  viz. 
[state  articles],  and  other  articles  of  that  character  and  had 
in  its  possession  at  the  time  last  aforesaid  and  owned  a 
large  quantity  of  manufactured  articles  and  merchandise 
which  it  was  offering  for  sale  and  selling  in  its  said  busi- 
ness, and  also  tools  and  machinery  employed  by  it  in  their 
manufacture.. 

That  the  said  R.  &  Co.  was,  on  the  said day  of 

,  18 — ,  and  for  a  long  time  previously  thereto  had 

been  unable  to  pay  its  debts  and  insolvent  and  owed  large 
sums  of  money  in  various  amounts  more  in  the  aggregate 
than  the  value  of  the  assets  which  belonged  to  it,  and, 
upon  information  and  belief,  that  the  said  defendant,  R.  & 
Co.,  has  no  assets  of  any  substantial  value  liable  to  levy 
and  sale  under  executicn  other  than  those  which  are  cov- 
ered by  the  chattel  mortgage  hereinafter  mentioned  [ac- 
cording to  the  statements  of  said  R.  &  Co.,  made  by  the 
managing  officer  thereof,  from  which  statements  such  infor- 
mation has  been  derived]. 

That  on  the day  of ,  18—,  the  said  R.  & 

Co.,  as  plaintiff  is  informed  and  believes,  in  view  of  its 
inability  to  x)ay  its  indebtedness  and  its  insolvency,  and 
in  contemplacion  of  such  insolvency  and  of  a  stopping  of 
payment  of  its  debts  as  thej^  should  mature,  executed  a 
mortgage  upon  the  merchandise,  tools,  machinery  and  arti- 
cles aforesaid  to  the  defendant,  H.  B.,  dated ,  18 — , 

for  the  sura  of dollars,  as  collateral  security  for  [cer- 

have  elapsed  since  the  docketing  of  The  judgment  must  have  been  re- 

the  judgment,  if  no  new  lien  upon  the  covei-eil  in  a  court  of  this  State.    (Davis 

land  has  been  acquired  by  the  levy  of  v.  Bruns,  23  Hun,  648.) 

an  execution  thereon.     (Evans  v.  Hill,  *  See  note  2  to  form  No.  122. 

18  Hun,  464.) 


Judgment  Creditor's  Action.  743 

tain  promissory  notes  specified  in  said  mortgage,  amounting 
in  the  aggregate  to  the  sum  of dollars  of  prin- 
cipal, and  also  for  a  certain  open  account  amountino-  to 

the  sum  of dollars],  upon  which  said  [notes  and 

account]  said  R.  &  Co.  claimed  to  be  indebted  at  the 
time  of  the  execution  of  said  mortgage  [that  beside  the 
alleged  debts  of  the  said  defendant,  R.  &  Co.,  attempted 
by  it  to  be  provided  for  by  said  mortgage,  said  defend- 
ant, R.  &  Co.,  owed  to  the  plaintiff  in  this  action  large 
sums  of  money  for  which  no  provision  was  made  in  said 
mortgage],  and  that  as  plaintiff  is  informed  and  believes 
[according  to  the  statements  of  R.  &  Co.,  made  on  or  about 
,  18 — ,  from  which  statement  such  informa- 
tion is  derived],  the  amount  of  its  liabilities,  exclusive  of 
the  debts  provided  for  by  said  mortgage,  was  and  is  the  sum 

of  at  least dollars,  and  the  amount  of  its  assets 

less  than dollars  [after  deducting  the  amount  in- 
cluded in  said  mortgage],  and  that  said  mortgage  was  exe- 
cuted and  delivered  by  said  R.  &  Co.  for  the  purpose  of 
giving  a  preference  to  the  claims  against  it,  mentioned 
in  the  said  mortgage,  over  the  claims  of  the  other  creditors 
of  said  R.  &  Co.,  and  to  the  exclusion  of  the  said  last  named 
creditors,  in  the  distribution  of  the  assets  of  the  said  R. 
&Co. 

That  the  said  mortgage  w^as,  immediately  after  the  exe- 
cution and  delivery  thereof,  filed  in  the  clerk's  ofliice  of  the 

county  of ,  and  became  and  is  an  apparent  lien  upon 

the  goods  and  merchandise  and  articles,  lools  and  ma- 
chinery therein,  and  in  the  schedule  thereunto  attached  de- 
scribed, and  that  the  same  hinders  and  obstructs  and  pre- 
vents the  collection  of  the  amount  due  upon  the  judgment 
aforesaid  of  this  plaintiff,  under  the  execution  issued 
thereon  and  outstanding  in  the  hands  of  the  sheriff  afore- 
said. 

That  immediately  after  the  execution  and  delivery  of  the 
aforesaid  mortgage,  the  said  defendant,  R.  &  Co.,  suspended 
the  payment  of  its  debts,  and  refused  to  ])ay  its  indf^bt- 
edness  to  the  plaintiff  upon  the  [notes  hereinbefore  men- 
tioned, which  became  due  at  or  about  the  time  of  the  filing 


744  Forms  Relating  to 

of  tlie  said  mortgage],  and  refused  to  pay  their  other  debts 
and  liabilities,  declaring  themselves  unable  to  do  so. 

That  after  the  commencement  of  the  plaintiff's  action 
against  R.  &  Co.    aforesaid,  the  said   defendant,   H.   B., 

commenced  an  action  in  the Court  of  the  city  of 

against  the  defendant,  R.  &  Co.,  to  recover  upon 

one  or  more  of  the  notes  purporting  to  be  secured  by  the 
mortgage  aforesaid  of  R.  &  Co.  to  said  H.  B.,  and  by 
means  of  a  shorter  time  i)rescribed  for  answering  in  said 

Court,  and  by  reason  of  defendant,  R.  &  Co.,  by 

some  one  of  its  officers,  amenable  to  service  of  process  for 
said  company,  voluntarily  placing  himself  within  the  reach 
of  the  process  of  that  court,  so  that  service  could  be  made 
upon  said  R.  &  Co.  of  process  from  said  court,  and  by 
reason  of  the  default  of  said  R.  &  Co.  said  H.  B.  recovered 
a  judgment  in  said  action  against  said  R.  &  Co.  for  the  sum 

of dollars,  and  entered  the  same  and  transcripted 

the  same  to count5^  at  a  day  prior  to  that  on  which 

the  judgment  aforesaid  of  the  plaintiff  became  due. 

That  an  execution  upon  the  said  judgment  so  recovered 
in  behalf  of  said  H.  B.  has  been  placed  in  the  hands  of  the 

sheriff  of county,  and  that  said  execution  is  claimed 

by  the  owners  of  said  judgment  and  aj^pears  upon  the  record 
to  be  a  lien  upon  the  assets  of  said  defendant,  R.  &  Co., 
prior  to  the  execution  aforesaid  of  the  plaintiff. 

That  the  said  judgment  recovered,  as  aforesaid,  in  the 

Court  of  the  city  of was  recovered  through 

the  collusion  of  the  said  R.  &  Co.,  with  the  plaintiffs  in  the 

said  action  in  the  said Court,  and  by  the  said  R. 

&  Co.  voluntarily  and  with  the  design  to  secure  a  preference 

for  said  judgment  of  the  said Court,  placing  itself 

within  reach  of  the  process  of  that  court,  and  in  fraud  of 
the  rights  of  the  plaintiff. 

That  the  said  R.  &  Co.,  after  the  execution  of  the  said 
mortgage,  was  permitted  to  remain,  and  did  remain,  in  pos- 
session of  the  said  mortgaged  property  and  was  permitted 
to  sell,  and  did  sell,  part  of  the  same  in  its  ordinary  busi- 
ness, and  was  allowed  to  receive  the  proceeds  thereof  for 
its  own  use,  and  that  said  sales  were  made  and  money  so 
received  by  the  consent  and  under  an  agreement  to  that 


JuDGMEi^T  Ckeditor's  Action.  745 

effect  between  the  said  defendant,  R.  &  Co.,  and  the  said 
mortgagee. 

That  the  said  mortgagee  has  taken  possession  and  has  ad- 
vertised the  property  and  proposes  to  sell  the. same  under 
the  said  mortgage,  and  the  said  sheriff  jDroposes  to  sell  the 
right  and  title  of  said  R.  &  Co.,  under  the  prior  execution 
to  that  of  the  plaintiff  ;  that  the  sheriff  has  levied  under  the 
plaintiff's  execution  and  still  holds  said  levy;  that  the 
property  is  likel}^  to  be  scattered  and  either  the  property 
or  its  proceeds  removed  out  of  the  jurisdiction  of  this  court, 
and  that  in  case  of  an  attempt  to  sell  under  the  plaintiff's 
execution  there  is  such  a  cloud  upon  the  title  that  no  one 
will  bid  on  the  property. 

[That  plaintiff  is  informed  and  believes  that  the  mortga- 
gee claims  a  lien  on  said  property,  by  virtue  of  said  mort- 
gage, to  the  extent  of  some dollars,  and  that  the 

debts  secured  by  said  mortgage  and  the  said  judgment  of 
H.  B.  are,  in  part,  the  same  debts,  and  that  he  claims  to 
enforce  his  liens  for  the  full  amount  of  each  of  said  liens.] 

That  the  said  alleged  mortgage  provides,  among  other 
things,  that  the  mortgagees  therein  named  may,  at  any 
time,  take  possession  of  the  said  projDerty,  and  may  sell 
the  same  to  satisfy  the  said  mortgage,  and  that  the  said 
mortgagee  has,  by  his  agents,  taken  possession  of  the  said 
property,  and  disputes  the  right  of  the  sheriff  to  take 
the  same  under  the  execution  in  his  hands,  other  than  the 
execution  aforesaid  of  the  said  mortgagee  claiming  to 
hold  possession,  and  to  dispose  of  the  same  under  the  said 
mortgage. 

[That  the  said  defendant,  H.  B.,  is  a  foreign  corporation 
under  the  laws  of  the of ■ — .] 

The  plaintiff,  therefore,  demands  judgment. 

That  the  said  mortgage  executed  by  R.  &  Co.,  defendant, 
to  the  defendant,  H.  B.,  may  be  adjudged  fraudulent  as 
against  the  plaintiff's  jndgmont,  and  the  execution  issued 
thereon,  and  void,  and  that  it  may  be  removed  as  a  cloud 
upon  the  title  of  the  said  R.  S:  Co.,  and  that  the  said  prop- 
erty now  apparently  covered  by  the  said  mortgage  may  be- 
come subject  to  thp  pxpfiition  of  this  plaintiff,  now  in  the 
hands  of  the  sheriff,  freed  from  any  lieu  of  said  mortgage. 
94 


746  Forms  Relatits^g  to 

That  the  defendants,  and  each  of  them,  and  their  agents, 
attorneys  and  servants,  and  all  persons  acting  and  claiming 
under  them,  may  be  enjoined  and  restrained  from  selling  or 
interfering  with  any  of  the  said  mortgaged  property,  and 
that  a  temporary  injunction  may  be  ordered  restraining  any 
of  the  defendants,  their  agents  or  servants,  from  interfering 
with  or  selling  or  disposing  of  the  property  during  the 
pendency  of  this  action. 

That  a  receiver  may  be  appointed  to  take  possession  of 
the  said  property,  and  that  the  invalidity  of  the  said  mort- 
gage and  of  the  said  judgment  of  said  H.  B.  may  be 
determined  and  declared,  and  that  the  defendants  deliver 
possession  of  said  property  to  said  receiver,  that  said  prop- 
erty may  be  sold  by  said  receiver  and  the  proceeds  thereof 
may  be  applied  in  payment  of  the  judgment  aforesaid  of 
the  plaintiff,  and  interest  thereon,  after  satisfying  the  ex- 
penses of  such  receivership  and  the  costs  of  this  action,  and 
for  such  other  and  further  relief  as  to  this  court  may  seem 
just  in  the  premises  and  equitable.' 

A.  W.,  Plaintiff'' s  Attorney. 
[Office  address.'] 
[Verification  as  in  forms  Nos.  151,  etc.] 

*  See  notes  to  last  form  No.  859,  and  cox  v.   Payne   (22  Abb.   N.  C,  207), 

see,  also,  among-  other  recent  cases,  Braem  v.   Merchants'  Nat.   Bank   of 

Young  V.  Heermans  (66  N.  Y.,  374),  Syracuse  (25  State  Rep.,  281,  aflPd  S. 

Adsit  V.  Butler  (87  N.  Y.,  585),  afl'g-  C,   127  N.   Y.,   555),  generally  as  to 

S.  C,  sub  nam.,  Adsit  v.  Sandford  (23  action  to  set  aside  fraudulent  convey- 

Hun,  45),  Geery  v.  Geery  (63  N.  Y.,  ance  and  transfer. 

2.52),  Van "Wyckv.  Baker  (10  Hun,  39),  A  judgment  creditor  cannot  main- 

Dewey  v.  Moyer  (72  N.  Y.,  70),  Union  tain  an  action  to  have  an  instrument 

Nat'fBank  v.  Warner  (12  Hun,  306),  declared  fraudulent  and  void,  when  a 

Ballou  V.  Jones  (13  Hun,  629),  Sloane  valid  general  assignment  for  the  ben- 

V.  "Waring  (9  Week.  Dig.,  170),  Howell  efit  of  creditors  has  been  made  by  the 

V.  Earp  (21  Hun,  393),  Nat.  Bank  of  debtor  previous  to  the  procuring  ol 

Rondout  V.   Drevfus  (14  Week.  Dig.,  the  judgment.     (Childs  v.  Kendall,  17 

160),  Lichtenbergh  v.  Herdtfelder  (19  Week.  Dig.,  546  ;  Lowery  v.  Clinton, 

Week.  Dig.,  334),  Coleman  V.  Burr  (93  32   Hun,  267  ;  S.   C,  19  Week.    Dig., 

N.  Y.,  17),  Bates  v.  Plonsky  (28  Hun,  191 ;  citing  Spring  v.  Short,  90  N.  Y., 

112 ;  S.  C,  64  How.  Pr.,  232 ;  2  Civ.  538,  by  which  Leonard  v.  Clinton,  26 

Pro.    Rep.    [BrowTie],   389;   id.   [Mc-  Hun,  288,  is  regarded  as  overruled.) 

Carty],  221),  Genesee  River  Nat.  Bank  See,  also,  Wheeler  v.  Lawson  (103  N. 

v.  Mead  (92   N.  Y.,  637),  Prentiss  v.  Y.,  40),  Tremaine  v.   Mortimer  (128 

Nichols  (16  Week.  Dig.,  73).  McClosky  id.,  1),  Stephens  v.  Perrine  (143  id., 

V.  Stewart  (63  How.  "Pr.,  137).  Quinby  476),  Dorthy  v.  Servis  (46  Hun,  628), 

V.   Strauss  (90   N.  Y.,  664),  National  The  sheriffis  the  only  party  who  can 

Trade.'Jmen's  Bank  v.  Wetmore  (124  maintain  an  equitable  action  to  pre- 

id.,  241),  Kley  v.  Healey  127  id.,  555),  vent  the  removal  of  property  from  his 

Spelman  v.  Friedman  (130  id.,  421),  possession   after  levy,  or  to  recover. 

Central   Nat.  Bank  v.  Seligman  (138  because    the    same    was  secretly   or 

id.,  435),  Abegg  v.  Bishop  (142  N.  Y.,  otherwise     removed     or     converted. 

286).  Weaver  v.   Haviland  (id.,  534),  (Steffin   v.  Lockwood,  17  Week.  Dig., 

Lichtenbergh   v.  Hertfelder  (103   N.  418.) 

Y.,  302,  aflPg  S.  C,  33  Hun,  57),  Wil-  Such  an  action  cannot  be  maintained 


Judgment  Creditor's  Action. 


747 


No.  861. 

Complaint  against  Jndgment  Debtor  and  His  Trustee,  to 
Reach  tlie  Trust  Fund  or  the  Income  Thereof. 

As  in  form  No.  859  to  [*],  and  from  thence  as  follows : 
That  the  defendant,  C.  D.  [the  judgment  debtor],  is  the 
beneficiary  under  a  trust  created  by  deed  heretofore  exe- 
cuted by  him  \or  created  by  the  will  of  ,  deceased], 

of  which  a  copy  is  hereto  annexed  as  a  part  of  this  com- 
plaint. 

That  the  fund,  consisting  of  about  the  sum  of  

dollars,  is  now  in  the  hands  of  the  defendant,  E.  F.  [the 
trustee],  as  trustee  {or  executor],  and  the  defendant,  C.  D., 
is  entitled  to  receive,  and  does  receive,  annually,  the  sum 
of dollars  therefrom. 

[If  it  be  a  trust  under  which  the  plaintiff  can  reach  only 
surplus  income,  say:]  That  the  defendant,  C.  D.,  is  a  man 

without  family,  and  resides  at ,  where  he  has  been 

for  the years  last  past,  and  still  is  boarding,  and 


the  sum  of 


dollars,  annually,  is  a  reasonable  sum 


by  a  judgment  creditor.  (Steffin  v. 
Lockwood,  17  Week.  Dig.,  418.) 

But  where  a  lease  contains  a  chat- 
tel mortgage  clause,  which  is  valid  be- 
tween the  parties  but  void  as  to  a 
judgment  creditor  because  not  filed, 
which  is  being  used  as  a  fraudulent 
obstruction  to  the  enforcement  of  the 
execution  out  of  the  property  covered 
by  the  lease,  an  action  may  be  main- 
tained by  the  judgment  creditor  against 
the  parties  to  the  lease  to  remove  the 
obstruction  in  aid  of  the  execution. 
(Id.) 

An  action  by  a  judgment  creditor 
to  set  aside  a  fraudulent  conveyance, 
and  to  have  the  property  adjudged  to 
be  subject  to  the  lien  of  his  judgment 
and  the  execution  issued  thereon,  and 
th'jn  in  the  hands  of  the  sheriff,  i.s  not 
affected  l)y  the  return  during  its  pend- 
ency of  the  execution.  (Roycr  Wlieel 
Co.  V.  Fielding,  31  Hun,  274  ;  r.rvM 
on  other  pointH,  101  N.  Y.,  .W4.) 

Thejudg-mentdebtorH  may  be  joined 


as  defendants  in  the  action,  aUhough> 
their  ownership  of  the  property  sought 
to  be  reached  is  several.  (Bradner  v. 
Holland,  19  Week.  Dig.,  368.) 

The  provisions  of  sections  1871-1879 
of  Code  Civ.  Pro.,  do  not  apply  to  an 
action  where  the  judgment  debtor  is  a 
corporation.  (Code  Civ.  Pro.,  §  1879.) 
But  the  jurisdiction  of  the  court  to  set 
aside  the  conveyance  made  by  the 
corporation  in  violation  of  the  statute, 
in  aid  of  an  execution  or  upon  the  re- 
turn of  an  execution,  wholly  or  in  part 
un.satisfied,  is  not  interfered  with  by 
this  provision. 

This  form  of  complaint  may  easily 
be  adapted  to  the  case  of  a  fraudulent 
mortgage  or  transfer  by  an  individual. 

For  complaint  in  judgment  credit- 
or's action  to  procure  a  judgment  di- 
recting sale  of  j)ropcrty  exempted  as 
a  homestead,  under  section  1102,  Code 
Civ.  Pro.,  Heo  form  No.  57.S,  \).  447. 

'See  note  2  to  form  No.  122. 


748  FoKMS  Relating  to 

for  his  support ;  and  that  the  sum  of dollars,  an- 
nually, is  surplus  income. 

[If  the  plaintiff  is  entitled  only  to  the  accrued  surplus, 

add  :J  Of  which  surplus dollars  is  in  the  hands  of 

the  defendant,  E.  F.,  already  accrued,  but  not  paid  over. 

Wherefore  the  phiintiff  asks  that  the  defendants  be  en- 
joined from  paying  over  and  from  receiving  said  fund  \or 
so  much  of  said  income  already  accrued  as  is  not  necessary 
for  the  support  of  the  said  C.  D.  and  his  family] ;  and  that 
the  sum  be  applied  to  the  satisfaction  of  the  pkuntiff's 
judgment  and  interest,  and  the  costs  of  this  action,  or  for 
such  other,  etc. 

[Conclude  as  in  form  No.  860.'] 


No.  862. 

Complaint  against  Judgment  Debtor  and  His  Assignee  to 
Set  Aside  Assignment. 

As  in  form  No.  859  to  [*],  and  from  thence  as  follows : 
That  after  the  contracting  of  the  debt  on  which  the  afore- 
said judgment  was  recovered  the  said  CD.  executed  and 
delivered  to  the  defendant,  E.  F.,  an  assignment  of  all  Lis 
property  in  trusc  for  the  payment  of  his  debts  [of  which  a 
copy  is  hereto  annexed,  marked  schedule  A,  and  made  a 
part  of  this  complaint],  to  which  assignment  the  said  E.  Y. 
assented  in  writing,  which  assent  was  embraced  therein  \or 
indorsed  thereupon]. 

That  said  assignment  [and  assent]  was  \or  were]  duly  ac- 
knowledged by  said  assignor  and  assignee,  and  was  \or  were] 

duly  recorded  in county  clerk's  office,  in  which 

county  said  C.  D.  resided  \or  carried  on  his  business]  at  the 
time  of  the  execution  thereof,'  in  book  No.  —  of  deeds,  at 
page  — . 

*This  form  is  from  3  Barb.  Ch.  Pr.  also  ch.  318  of  1878,  amending  above 

(2d  ed.,  vol.  3),  709.  mentioned  act;  also,  McBlain  v.  Speel- 

See  Williams  v.  Thorn    (70   N.  Y.,  man  (20  W.  Dig- ,  455  ;    35  Hun,  263) ; 

270;  81  id..  381),  McEvoyv.  Appleby  Camp  v.   Burton  (id.,   479;  S.  C..'34 

(27  Hun.    44),    McEwen   v.   Brewster  Hun,  511);  Claflin  v.  Smith  (21  id.,  23(5); 

(17  id.,  223;  S.  C,  19  id.,  337),  Pray  Warner   v.  Jaftray    (96    N.   Y.,  248); 

V.  Heg-eman   (27  id.,   603),  Parker  v.  Mcllharg-y  v.  Chamber?  (117  id.,  .532, 

Harrison  (42  N.  Y.  Super.  Ct.,  150),  rev'g  S.  C,  51  Hun,  332) )  Franey  v. 

Jack.son  v.  Prime    (12  W.  Dig.,  113),  Smith   (125  id  ,    44,    rev'g   S    C,   47 

Miller  v.  Miller   (1  Abb.  N.  C,  30),  Hun,    119)  ;  Dutchess   Co.    Mut.   Ins. 

and  note  4  to  form  No.  859.  Co.  v.  Van  Wagonen  (132  N.  Y.,  398) ; 

'SeeLawsof  1877,  ch.  466,  §2.    In  Barth   v.   Backus   (140   N.  Y.,    230); 

case  of  copartnership  the  assignment  Vanderpoel    v.    Gorman     (id.,    563), 

is  required  to  be  recorded  in  the  coun-  among  other  cases ;  and  see  amend- 

ty  where  the  principal  place  of  busi-  ments  to  said  section  2  by  chapter  294 

ness  of  the  copartners  is  situated.   See  of  Laws  of  1888. 


Judgment  Creditor's  Action.  749 

That  the  said  E.  F.  accepted  said  trust  and  has  collected 
a  large  sum  of  money  and  other  i3roperty  from  the  assets  so 

assigned,  amounting  in  all  to  the  sum  of  more  than  • . 

dollars. 

That  the  said  assignment  was  made  by  the  said  C.  D.  with 
the  intent  to  hinder,  delay  and  defraud  his  creditors  ;  that 
it  was  not  accompanied  by  an  immediate  and  continued 
change  of  possession  of  the  property  ;  that  since  the  same 
was  executed  and  delivered,  and  up  to  the  present  time,  the 
said  property  has  remained  in  the  actual  possession  and 
under  the  control  of  said  C.  D.,  who  has  retained  possession 
and  control  thereof  under  the  false  and  fraudulent  pretence 
that  he  is  the  agent  of  said  C.  B. 

That  the  pretended  indebtedness  set  forth  in  said  assign- 
ment as  due  from  said  C.  D.  to  the  defendant,  G.  H.  [prefer- 
red creditor],  is  fictitious  ;  that  in  fact  no  such  indebtedness 
exists  ;  but  that  the  same  is  therein  inserted  for  the  purpose 
of  enabling  said  C.  D.  to  distribute  the  proceeds  of  the 
goods  passed  under  the  assignment,  among  liis  friends,  and 
thereby  to  keep  possession  and  control  thereof  himself. 

That  the  defendant,  C.  D.,  has  not  any  other  property 
than  that  embraced  in  the  assignment  aforesaid,  out  of 
which  ilie  said  judgment  could  be  satisfied  in  whole  or  in 
part ;  that  unless  the  said  x>i'op<?i'ty  can  be  reached  and 
applied  to  the  payment  of  said  judgment  the  same  must 
remain  wholly  unpaid. 

Wherefore  the  plaintiff  demands  judgment : 

1.  That  said  assignment  be  adjudged  fraudulent  and  void 
as  against  the  jilaintiff  [and  such  other  judgment  creditors 
of  said  C.  D.  as  shall  elect  to  come  in  and  share  the  ex- 
penses of  this  action]. 

2.  That  a  receiver  of  all  the  property  and  effects  of  said 
C.  D.  be  appointed. 

3.  That  the  defendants  be  adjudged  to  account  for  all  the 
property  received  by  them,  or  either  of  them,  uiidei-  said 
assignment,  and  for  all  the  proceeds  .arising  from  the  sale 
thereof,  and  deliver  the  same  to  such  receiver. 

4.  Thnt  snrh  defendants  be,  in  the  menntinie,  enjoined 
and  restrained  from  disposing  of  any  of  said  ^jroperty,  or 


750  Forms  Relating  to 

paying  away  any  of  the  proceeds  thereof,  or  in  anywise 
interfering  therewith. 

5.  That  said  receiver  pay,  out  of  the  proceeds  of  said 
property,  tlie  judgment  aforesaid,  and  the  costs  and  ex- 
penses of  this  action,  and  hold  the  balance  subject  to  the 
further  order  of  this  court. 

6.  Or  for  such  other  or  further  relief  as  shall  be  just.^ 

J.  C,  Plaintiff'' s  Attorney, 
[Office  address.''] 
[Verification  as  in  forms  Nos.  151,  etc.] 


ISTo.  863. 

Complaint  against  Judgment  Debtor  to  Set  Aside  a  Fraud- 
lent  Judgment  and  Sale. 

As  in  form  No.  859  to  [*J,  and  from  thence  as  follows : 
That  previous  to  the  time  of  the  docketing  of  said  judg- 
ment in  Gaivl  oounty  of ,  the  said  defendant,  C.  D., 

was  the  o\.Rjrn  in  I'ee  simple,  of  certain  real  estate,  situate 

in  said  county  :  f ,  described  generally  as  follows 

[insert  brief  OGScript^''^n]. 

That  said  dofo::dant  was  also  the  owner,  and  in  possession 
of  certain  personal  property  not  exempt  by  law  from  exe- 
cution, to  Avit  [deseripticn  and  value  of  property]. 

That  prior  to  the  entry  of  the  said  judgment,  but  after 
the  indebtedness  upon  which  the  aforesaid  judgment  was 
rendered  had  accrued,  the  said  defendant,  C.  D.,  authorized 
a  judgment  to  be  entered,  on  confession,  in  the  Supreme 
Court,  against  him,  in  favor  of  the  defendant,  E.  F.,  for  the 

sum  of dollars  damages  and  costs,  for  a  pretended 

debt  of  that  am-unt,  for  money  alleged  to  have  been  pre- 
viously lent  and  advanced  by  said  E.  F.  to  the  said  C.  D. 

That  such  \  oceedings  were  thereupon  iir.d,  that  said 
judgment  was  so  entered  for  such  sum  in  the    ©imty  of 

,  on  the •  day  of ,  18 — ,  and  e::iccu- 

tion  being  thci-e;ipon  issued  upon  the  said  judgment,  the 
personal  pro^ferty  hereinbefoie  mentioned  was  thereunder 
sold  at  public  :.uction  by  the  sheriff  of  the  said  county  of 

'  This  form  is  substantially  from  3        See  notes  to  forms  TTos.  859,  860. 
Barb.  Ch.  Pr.  (2d  ed  ),  705.  «  See  note  2  to  form  No.  122. 


Judgment  Ckeditor's  Action.  751 

,  on,  etc.,  and  was  struck  off  to  said  defendant, 

E.  P. ,  at  a  sum  far  less  than  its  real  value,  who  thereupon 
took  possession,  and  is  now  in  possession  of  the  same, 
claiming  to  be  the  owner  thereof.  And  the  personal  prop- 
erty of  the  said  C.  D.  not  being  sufficient  to  satisfy  the  said 
judgment,  the  real  estate  of  the  said  C.   D.  was,  on  the 

day  of ,  18 — ,  exposed  for  sale  by  the  sheriff 

of  said  county,  under  an  execution  issued,  upon  said  judg- 
ment, and  was  struck  off  to  the  said  defendant,  E.  F.  [also 
at  a  price  much  below  its  real  value],  his  being  the  highest 
bid  for  the  same  ;  and  the  said  sheriff  thereupon  executed, 
in  du]3licate,  and  delivered  to  the  said  E.  F.,  his  certificate 

of  sale  of  the  said  real  estate,  on  the day  of , 

aforesaid,  but  no  deed  or  conveyance  has  yet  been  executed 
by  said  sheriff,  the  time  for  such  conveyance  not  yet  having 
arrived. 

The  plaintiff  alleges,  on  information  and  belief,  that  the 
said  last  mentioned  judgment  was  fraudulently  confessed 
by  the  said  C.  D.  to  the  said  E.  F.,  and  for  the  i:)ui'pose  of 
covering  up  his  said  property  and  defrauding  the  plaintiff 
in  the  collection  of  his  said  debt  and  demand. 

That  said  C.  D.  was  not  indebted  to  the  said  E.  F.  in  said 

sum  of  dollars,  for  which  said  judgment  was  so 

confessed^  or  in  any  other  sum,  but  said  judgment  was  con- 
fessed without  any  consideration,  and  the  sale  of  the  said 
property  made  with  the  full  knowledge  and  concurrence 
of  said  defendant,  E.  F.,  with  the  intention  and  design  of 
cheating  and  defrauding  this  plaintiff  out  of  his  said  debt 
and  demand,  and  of  transferring  the  ostensible  ownership 
and  possession  of  the  property  of  said  C.  D.  liable  to  exe.- 
cution  to  the  said  defendant,  E.  F.,  so  as  to  prevent  this 
plaintiff,  or  any  other  creditor,  from  levying  upon  and  sell- 
ing the  whole,  or  any  part  of  said  property,  in  satisfaction 
of  his  or  their  debt  or  debts  and  demands. 

The  plaintiff  further  alleges,  on  information  and  belief, 
that  tlie  said  real  estate  cannot  be  sold  for  a  sum  more  than 
about  one-half  of  the  plaintiff's  said  judgment,  and  that 
said  defendant,  E.  F.,  is  a  man  of  no  pecuniary  responsi- 
bility, and  is  possessed  of  little  or  no  property,  other  than 


762  Forms  Eelating  to 

that  so  bid  in  by  him  as  aforesaid,  and  is  in  embarrassed 
circumstances. 

Wherefore  the  plaintiff  demands  judgment  against  the 
defendants,  that  the  said  judgment  in  favor  of  the  said  E. 
F.,  against  the  said  C.  D.,  and  the  i)roceedings  and  sale 
under  it,  including  the  sheriff's  said  certilicate  of  sale,  be 
set  aside,  vacated  and  declared  null  and  void. 

That  an  injunction  be  allowed  restraining  the  said  de- 
fendants, or  either  of  them,  from  disposing  of,  transferring, 
incumbering,  or  in  any  manner  interfering  with  the  said 
property,  or  any  part  thereof ;  and  that  a  receiver  be  ap- 
pointed, with  the  usual  powers  and  duties,  to  whom  the 
said  defendants,  shall  be  directed  to  assign  the  said  jjroperty 
real  and  personal,  and  all  other  estate,  property  and  effects 
of  said  defendant,  C.  D.,  and  who  shall  be  authorized  and 
directed  to  sell  the  same,  or  so  much  thereof  as  shall  be 
necessary  for  that  purpose,  and  apply  the  proceeds,  or  so 
much  thereof  as  shall  be  necessary,  to  the  payment  of  the 
plaintiff's  said  judgment  and  interest  thereon,  together  with 
the  costs  of  this  action,  or  for  such  other  or  further  relief  as 
this  court  shall  think  proper  to  grant.' 

J.  C,  Plaintiff'' s  Attorney. 
[Office  address.'] 

[Verification  as  in  forms  Nos.  151,  etc.] 


No.  864. 
Final  Judgment  in  Judgment  Creditor's  Action, 

(Code  Civ.  Pro.,  §  1873.) 

[Title  of  cause.] 

Judgment  of  the  • day  of ,  18 — . 

The  summons  and  copy  complaint  in  this  action  having 
been  served  personally  on  the  defendant,  more  than  twenty 
days  since,  and  no  demurrer  or  answer  having  been  received, 

and  an  order  having  been  made,  bearing  date  on  the 

day  of ,  18 — ,  whereby  E.  P.  was  appointed  a  receiver  of 

the  estate  and  property,  equitable  interests  and  effects  of  the 

1  This  form  is  from  3  Barb.  Ch.  Pr.        *  See  note  2  to  form  No.  123. 
(2d  ed.),  706;  see  notes  to  forms  Nos. 
859,  8G0. 


Judgment  Creditor's  Action.  7oS 

defendant,  C.  D.,  with  the  usual  j)owers  and  duties,  and 
upon  the  usual  directions ;  and  the  said  receiver  having 
become  duly  qualified  by  filing  the  requisite  security,  and 
taken  upon  himself  the  duties  of  said  trust,  and  he  having 
proceeded  to  reduce  said  property  and  effects  to  money  as 
far  as  practicable  [and  collected  a  sum  sufiicient,  as  appears 

by  his  report  thereof  {or  by  the  report  of ,  referee, 

appointed  to  take  and  state  said  receiver's  accounts)] : 

Now,  therefore,  on  motion  of ,  etc.,  it  is  adjudged, 

pursuant  to,  etc.,  [*]  that  out  of  the  moneys  in  the  hands 
of  the  said  receiver,  so  collected  and  held  by  him,  such  re- 
ceiver, after  deducting  his  charges  for  disbursements  and 
commissions,  at  the  rate  allowed  by  law,  do  j)ay  the  plain- 
tiff, or  his  attorney,  his  costs  and  disbursements  of  this 

action,  the  sum  of  dollars,  and  take  his  receipt 

therefor ;  and  that  out  of  the  residue  of  said  moneys  he 
pay  the  said  plaintiff,  or  his  attorney,  the  amount  of  his 

debt  and  judgment,  to  wit :  the  sum  of dollars,  with 

interest  thereon  from  the  time  said  judgment  was  entered, 

to  wit :  the day  of ,  18 — ,  and  take  from  said 

plaintiff  an  acknowledgment  of  satisfaction  of  said  judg- 
ment, and  deliver  the  same  to  said  defendant  [or  to  the  clerk 

of  the  county  of  — J,  to  the  end  that  said  judgment 

may  be  cancelled  and  discharged  of  record, 

[If  there  are  no  other  claimants  of  the  fund,  add :]  And 
it  is  further  adjudged,  that  said  receiver  pay  over  to  the 
said  defendant  the  residue  of  the  money  so  remaining  in 
his  hands,  or  account  with  him  for  the  same,  and  deliver 
to  him  all  and  singular  the  property  and  effects,  books  of 
account,  evidences  of  debt  or  other  papers  or  documents 
relating  to  said  trust  estate,  on  demand  of  said  defendant ; 
and  also,  if  said  defendant  shall  so  require,  that  said  re- 
ceiver execute  back  to  him  a  general  release  and  assignment 
of  all  and  singular  the  property,  equitable  interests  and 
effects  of  the  said  trust  estate,  remaining  in  his  hands  undis- 
posed of  ;  on  which  assignment  and  delivery  being  made,  it  is 
adjudged,  that  the  said  receiver  be  discharged  from  his  said 
trust,  and  his  bond  be  delivered  up  to  him  and  cancelled.' 

•  From  '.]  Barb.  CIi.  Pr.  I2(\  pfl.),  717.  be  roafhf'd  by  a  jud-rmfiif  rnditor's 
The  right  acquired  by  a  i)atentec  may     artion ;  but  it  8eem.s  tliat  an  xinpalented 

96 


754  Forms  Relating  to 

No.  865. 

Final  Ju(l2;meut  in  Jndgnient  Creditor's  Action    Setting 

Aside  and  Declaring  Void  a  Frandnlent  Incumbrance. 

As  in  I'orni  No.  804  to  ["^J,  and  iroin  thence  as  loJlows: 
That  the  judgment  of  this  court,  entered  on  confession,  in 

the  clerk's  office  of  the  county  of — ,  on  the 

day  of ,  18—,  in  favor  of    the   defendant,  E.  F., 

against  tlie  defendant,  C.  1).,  for  the  sum  of dol- 

hirs,  damages  and  costs,  together  with  the  ja-oceedings 
thereunder,  including  the  execution  issut  cl  on  said  judg- 
ment, the  sale  of  the  real  and  personal  j^roperty  thereon, 
and  the  sheriff's  certificate  of  sale  of  the  real  estate  to  the 

defendant,  E.  F.,  bearing  date  the day  of , 

18 — ,  be  and  the  same  are  set  aside  and  vacated  and  declared 
null  and  void  and  of  no  effect  whatever,  and  the  said  judg- 
ment is  ordered  and  adjudged  to  be  cancelled  and  dis- 
charged of  record  by  the  clerk  of  said  county  of . 

And  it  is  further  adjudged,  that  the  plaintiff'  in  this  ac- 
tion be  authorized  to  proceed  upon  his  execution  issued  on 
the  judgment  in  the  Supreme  Court,  wherein  he  is  plaintiff' 

and  said  C.  D.,  defendant,  for dollars,  damages 

and  costs,  entered  in  the  office  of  the  clerk  of  the  county  of 

,  and  a  transcript  thereof  filed  and  docketed  in  the 

county  of ,  or  issue  another  execution  thereon  if  it 

be  necessary,  and  that  said  defendant.  E.  F.,  turn  out  and 
deliver  to  said  sheriff,  uj)on  said  execution  so  issued,  or 
hereafter  to  be  issued,  said  personal  x>roperty,  to  wit  [de- 
scribing it],  to  be  sold  and  applied  upon  the  same,  and  if 
not  sufficient  to  satisfy  the  same,  with  interest  thereon  and 
sheriff's  fees  and  the  costs  of  this  action,  herein  adjudged 

at  the  sum  of dollars,  w^hich   the  said  defendant, 

C.  D.,  is  hereby  adjudged  to  pay  to  the  said  plaintiff,  that 
said  sheriff  thereupon  proceed  to  advertise  and  sell  said  real 
estate  for  the  payment  and  satisfaction  of  the  same. 

And  it  is  further  adjudged,  that  if  said  property,  real  or 
personal,  be  not  sufficient  to  pay  said  judgment,  interest 

invention  cannot  be  so  reached.     (Gil-  cases  cited  in  note  1  to  form  No.  861; 

lett  V,  Bate,  86  N.  Y.,  87.)  as  to  provisions  for  satisfaction  out  of 

See,  also,  notes  to  forms  Nos.  859,860.  interest  of  judgment  debtor  in  contract 

As  to  form  of  judtrment  in  action  to  for  purchase  of  real  property  by  him, 

reach  trust  fund  or  income  thereof,  see  see  sections  1874,  1875,  Code  Civ.  Pro. 


JUDGMEiNT   CilKDlTOR'S   ACTION.  755 

and  sheriff's  fees,  and  the  costs  of  this  action,  the  said 
plaintiff  have  further  execution  for  the  same  against  the 
defendant,  C.  D/         

No.  866. 

Final  Judgment  in  Action  hy  Judgment  Creditor,  Setting 
Aside  Fraudulent  Conveyance. 

As  in  form  No.  864  to  [*],  and  from  thence  as  follows : 
That  the  deed  of  conveyance,  executed  by  the  defendant, 
C.  D.,  to  the  defendant,  E.  F.,  of  the  premises  mentioned 

and  described  in  the  complaint,  bearing  date  on  the 

day  of ,  18 — ,  be  and  the  same  is  hereby  declared 

fraudulent  and  null  and  void  ;  and  it  is  adjudged,  that  the 
same  be  set  aside  and  discharged  of  record,  and  that  the 
said  defendants  execute,  acknowledge  and  deliver  to  the  said 
receiver  a  conveyance  and  quit-claim  of  said  ]3remises,  which 
are  described  in  the  complaint  in  this  action  as  follows  [in- 
sert description]. 

And  it  is  further  adjudged  and  ordered,  that  the  said 
receiver  do  forthwith  thereafter  proceed  to  sell,  at  iDublic 
auction  [specify  mode  of  sale,  advertising,  etc.],  the  said 
proj^erty  so  conveyed  ;  and  out  of  the  proceeds  thereof, 
after  first  deducting  the  expenses  of  said  sale,  and  his  law- 
ful charges  and  commissions,  that  said  receiver  do  pay  to 
the  iDlaintiff,  or  his  attorney,  the  costs  of  this  action,  herein 

adjusted  and  settled  at  the  sum  of dollars  ;  and  out 

of  the  residue  thereof,  if  there  be  sufficient  for  that  purpose, 
that  he  pay  the  said  plaintiff's  debt  and  judgment,  to  wit : 

the  sum  of dollars,  with  interest  thereon  from  the 

day  of ,  18 —  [directing  the  residue  either 

to  be  paid  over  to  the  defendant,  and  the  receiver  dis- 
charged, or  brought  into  court,  etc.]." 


No.  867. 

Final  Judgment  in  Judgment  Creditor's  Action  Dismissing 
Complaint,  witli  Costs  to  be  Set  Off. 

As  in  form  No.  457,  of  judgment  for  defendant,  adding 

'  From  3  Barb.  Ch.  Pr.  (2(1  cd.),  718.         '  From  3  Barb.  Ch.  Pr.  (2(1  cd.).  719. 
See  notes  to  forms  Nos.  809,  800.  See  notes  to  forms  Nos.  a59,  800. 


756  FOKMS   E,ELATING   TO 

as  follows :  And  that  the  said  costs  be  and  the  same  are 
hereby  set  off  against  so  much  of  the  plaintiff's  said  judg- 
ment in  the  [Supreme  CourtJ  against  the  defendant,  men- 
tioned in  the  complaint  and  entered  in  the  office  of  the 

clerk  of  the  county  of ,  on  the day  of 

,  18 — ,  for dollars  damages  and  costs. 


No.  868. 

Petition  by  Judgment  Creditor  for  Leave  to  Come  in  as  a 
Party  to  Creditor's  Action, 

[Title  of  cause.] 

To  the  Supreme  Court  of  the  State  of  New  TorJc  [or  name 
other  Courf] : 

The  petition  of  J.  M.,  of ,  respectfully  shows, 

that  he  is  a  creditor,  by  judgment,  of  the  defendant,  C.  D., 
in  this  action. 

Tliat  his  said  judgment  was  obtained  in  the Court, 

against  the  said  defendant,  for  the  sum  of dollars 

damages  and  costs,  and  was  duly  entered  and  docketed  in 
the  county  of ,  on  the day  of ,  18 — . 

That  an  execution  against  the  property  of  the  said  C.  D., 

was  issued  out  of  the  said Court,  on  the 

day  of ,  18 — ,  to  the  sheriff  of  the  county  of , 

where  the  said  defendant  then  resided  [and  now  resides]. 

[Or  where  he  then  had  (and  still  has)  an  office  for  the 
regular  transaction  of  business  in  person  {or  where  the  judg- 
ment roll  upon  said  judgment  is  filed;  or  where  a  transcript 
of  said  judgment  is  filed),  the  said  defendant  not  being,  at 
the  time  of  the  issuing  of  said  execution,  a  resident  of  the 
State.'] 

That  said  sheriflF  has  duly  returned  the  said  execution  to 

the  office  of  the  clerk  of county  wholly  unsatisfied 

[or  unsatisfied  to  the  extent  of dollars],  and  that 

there  is  still  due  and  unpaid,  upon  said  judgment,  the  said 

sum  of dollars,  with  interest  thereupon  from  the 

day  of ,  18 — . 

That  this  action  was  commenced  on  or  about  the 


»  See  subd.  2  of  section  1872,  Code  Civ,  Pro, 


Judgment  Creditor's  Action.  757 

day  of ,  18 — ,  in  favor  of  the  plaintiff  and  all  other 

persons,  being  judgment  creditors,  similarly  situated,  who 
should  come  in  and  contribute  to  the  expenses  thereof 
against  the  defendant,  C.  D.,  for  [state  relief],  and  such 
proceedings  have  been  had  in  said  action  that,  by  an  order 
in  said  action,  dated ,  18—,  a  receiver  has  been  ap- 
pointed of  the  property  and  effects  of  said  C.  D.,  and  said 
receiver  has  become  duly  qualified  to  act  by  filing  the  requi- 
site security,  and  is  now  in  possession  of  the  property  and 
effects  of  said  C.  T>. 

Your  petitioner  further  shows,  that  since  the  appointment 
of  said  receiver,  now  more  than  [one  year]  last  past,  no  pro- 
ceedings whatever  have  been  taken  in  said  action  [the  said 
plaintiff's  attorney  having  died  and  no  person  having  been 
appointetl  in  his  place],  and  no  steps  whatever  have  been 
taken  by  the  plaintiff,  or  the  said  receiver,  for  bringing  the 
said  action  and  proceedings  to  a  close. 

Your  petitioner  further  shows,  that  he  is  desirous  of  be- 
ing made  a  party  to  this  action,  and  is  willing,  and  hereby 
offers,  upon  being  allowed  to  come  in  as  such  party,  to  con- 
tribute his  proportion  to 'the  expenses  of  such  action. 

Wherefore  your  petitioner  prays  that,  by  an  order  of  the 
court,  he  may  be  allowed  to  come  in  and  be  made  a  party 
plaintiff  to  this  action  with  the  said  plaintiff,  A.  B.,  upon 
payment  to  him  of  your  petitioner's  ratable  share  of  the 
costs  and  expenses  of  this  action,  in  proportion  to  the 
amount  of  his  said  judgment,  to  be  settled  by  the  clerk,  or 
otherwise  ascertained  and  allowed  by  the  court,  or  for  such. 
other  or  further  relief  as  to  the  court  may  seem  proper.' 

Dated ,  18—. 

J.  M.     I 
[Verification  as  in  form  No.  52.] 

'  See  Dias  v.  Bouchaud  (10  Paige,  contribute  to  the  expenses  thereof ,  may 

445),  The  Bank  v.   Dugau  (2  Bland,  settle  and  discontinue  it,  at  any  time 

254),  Mattison  v.   Demarest  (19  Abb.,  beforetinal  judgment,  without  the  con- 

356;  S.   C,  1  Robt.,  717),  O'Brien  v.  sent  of  the  otlicr  creditors.     (Tremain 

Browning  (11   Hun,    179;  appeal  dis-  v.   Guardian  Mut.    Life  Ins.  Co.,    11 

missed,  S.  C,  77  K  Y.,  630).  Hun,  2«0  ;  Derby  v.  Yale,  i:}  id.,  273.) 

The  plaintiff  in  an  action  ])rought  See  Clafliu  v.  (rordon  (39  Hun,  54). 
by  a  judgment  creditor  in   behalf  of        Th.;   above  petition   and    I'ollowing: 

himself   and   all   other  creditors  simi-  order  are  subBtanlially  Iroin  3  Barb, 

larly  situated,  who  shall  come  in  and  Ch.  Pr.  (2d  cd.),  720. 


758  Forms  Relating  to 

No,  869. 

Order  upon  Petition  Granting  Petitioner  Leave  to  Come 
in  as  a  Party  to  Creditor's  Suit. 

[At,  etc.,  as  in  form  No.  80. J 

[Title  of  cause.] 

On  reading  and  filing  the  petition  of  J.  M.,  dated , 

18 — ,  and  duly  verified  for  leave  to  come  in  as  a  party 
plaintiff"  on  contributing  to  the  expenses  of  this  action,  and 

on  motion  of of  counsel  for  the  petitioner,  and 

after  hearing of  counsel  for  the  i)laintiff : 

It  is  hereby  ordered,  that  the  said  J.  M.  be  allowed  to 
come  in,  and  that  he  be  and  hereby  is  made  a  party  plain- 
tiff in  this  action,  on  paj'ing  to  the  plaintiff,  A.  B.,  the  sum 

of dollars,  being  his  ratable  proportion  of  the  costs 

ajid  expenses  of  this  action  [or  that  it  be  referred  to  the 
clerk  of  this  court  to  settle  the  costs  and  disbursements  of 
this  action,  and  ascertain  and  report  to  this  court  the 
amount  thereof  in  proportion  to  the  amount  of  his  judg- 
ment, for  the  said  J.  M.  to  contribute  and  pny,  to  the  end 
that  on  the  coming  in  and  confirmation  of  said  report,  a 
further  order  may  be  made  allowing  the  said  J.  M.  to  come 
in  and  be  made  a  party  plaintiff,  on  payment  of  his  just 
proportion  of  such  costs  and  expenses]. 


No.  870. 

Notice  of  Application  for  Injunction  Order  and  Order  to 
Show  Cause  against  Injunction  on  Creditor's  Com- 
plaint. 

(Code  Civ.  Pro.,  §  1876.) 

As  in  form  No.  213,  inserting  therein,  as  acts  enjoined,  as 
follows  :  [*]  From  selling,  assigning,  or  transferring,  receiv- 
ing, collecting,  discharging  or  incumbering,  or  in  any  man- 
ner interfering  w^ith  any  property,  real  or  personal  [not 
exempt  by  law  from  execution,  or  otherwise  by  law  ex- 
empted], things  in  action  or  other  equitable  property  and 
interests,  of  any  kind  whatever  held  or  controlled  by  him, 
or  by  any  other  person  held  in  trust  for  him,  or  for  his  use 
and  benefit,  or  in  which  he  has  any  interest  whatever,  except 


Judgment  Creditor's  Action.  759 

where  such  trust  has  been  created  by,  or  the  fund  so  held  in 
trust  has  proceeded  from,  a  person  other  than  the  said  de- 
fendant ;'  and  also  from  making  any  assignment  of  his  prop- 
erty, and  from  confessing  any  judgment  for  the  purpose  of 
giving  preference  to  any  other  creditor  over  the  plaintiff,  or 
from  doing  any  other  act  or  thing  to  enable  other  creditors 
or  persons  to  obtain  any  portion  of  his  said  property."  [f] 


No.  871. 

Same  as  Last  Form,  with  Clause  for  Appointment  of 

Receiver. 

(Code  Civ.  Pro.,  §  1877.) 

As  in  form  No.  870  to  end  thereof,  adding :  Also,  that  [or 
why]  a  receiver  of  the  estate,  property,  rights,  interests  and 
effects  of  the  said  defendant,  C.  D.,  with  the  usual  powers 
and  duties,  and  upon  the  usual  directions  [should  not],  be 
appointed,  according  to  the  statute  and  the  practice  of  the 
court.' 

No.  872. 
Injunction  Order  in  Action  by  Judgment  Creditor. 

(Code  Civ.  Pro.,  §  1876.) 

As  in  form  No.  214,  reciting  as  acts  to  be  i3rohibited  "  the 
transfer  by  the  defendant,  C.  D.,  to  any  person,  and  the 
payment  or  delivery  to  the  defendant,  C.  D.,  of  any  money, 
thing  in  action  or  other  property  or  interest  which  might, 
under  the  provisions  of  article  first  of  title  fourth  of  chapter 
fifteenth  of  the  Code  of  Civil  Procedure,  be  aj^plied  to  the 
satisfaction  of  the  sum  due  to  the  plaintiff,"  and  inserting 
as  acts  enjoined  as  in  form  No.  870,  from  [*]  to  end  of  that 
form.* 

'  For  property  excepted    from   the  Mason  (2  Barb.  Ch..  79),  and  see,  also, 

provisions  of  this  article  (arlicle  4  of  cases  cited' in  note  1  to  form  No.  861. 

title  4  of  chapter  15),  see  section  1879,  »  See,  also,  forms  Nos.  290  and  291. 

Code  Civ.  Pro.  The  two  apjilicalions  can  only '"'  uidt<'d 

'  As  to  form  of  injunction  iii)pli(u-  where  both  are  made  to  the  court, 

ble  to  surplus  of  tnist  fund,  sec  Rider  *  See  notes  to  form  No.  870. 
V.  Ma.son  (4  Sandf .  Ch. ,  351 ),  Sillick  v. 


760  Forms  Relating  to 

No.  873. 

Order  of  Reference  to  Appoint  Receiver  in  Judgment  Cred- 
itor's Action.' 

(Code  Civ.  Pro.,  §  1877.) 

See  form  No.  303  (vol.  1,  p.  218).  The  sixty  days'  earn- 
ings of  the  judgment  debtor,  which  are  by  section  1879, 
Code  Civil  Procedure,  to  be  allowed  him,  if  necessary,  to 
the  support  of  his  family,  are  not  excepted  from  the  order, 
as  they  depend  upon  subsequent  proof.  They  are  excepted 
from  the  assignment  made  by  the  debtor  under  the  order, 
form  No.  876.  

No.  874. 
Bond  of  Receiver  in  Judgment  Creditor's  Action. 

(Code  Civ.  Pro.,  §  1877.) 

See  form  No.  302  (vol.  1,  p.  217). 


No.  875. 

Order  Appointing  Referee  to  take  Examination  of  Judg- 
ment Debtor,  and  to  Direct  Assignment  and  Delivery  of 
his  Property  and  Conveyance  of  liis  Real  Estate. 

(Code  Civ.  Pro.,  §§  1877,  1878.) 

[At,  etc.,  as  in  form  No.  80. J 
[Title  of  cause.] 

The  summons  and  complaint  in  this  action  having  been 
served  more  than  twenty  days  since,  and  no  answer  or  de- 
murrer having  been  received  on  behalf  of  the  defendant, 
C.  D.  [or  this  action  having  been  brought  to  trial  before  the 
court  without  a  jury,  and  the  decision  of  the  judge  thereon 
having  been  filed  and  entered,  etc.,  etc.] : 

Now,  on  motion  of  J.  C,  of  counsel  for  the  plaintiff,  and 
after  hearing  N.  P.,  counsel  for  the  defendants  : 

Ordered,  that  it  be  referred,  to ?  Esq., 

of ,  to  take  the  examination  of  the  defendant,  C.  D., 

»  See  note  1  to  form  No.  299,  and     see  forms  Nos.  293,  and  295-297,  for 

proceedings  for  such  appointment. 


Judgment  Creditoe's  Action.  '761 

and  of  such  witnesses  as  shall  be  produced  before  him  under 
oath,  concerning  the  property,  chattels,  things  in  action, 
equitable  interests  and  effects  of  the  said  defendant,  C.  D., 
and  to  rejDort  the  same  to  this  court,  with  all  convenient 
speed.  And  the  said  referee  is  authorized  and  hereby  em- 
powered to  direct  the  assignment,  transfer  and  delivery  to 
the  receiver  heretofore  [or  herein]  appointed  of  any  and  all 
property,  real  and  personal,  book,  voucher  or  other  paper 
of  said  defendant,  which  shall  or  may  be  discovered  in  his 
possession  or  under  his  control,  and  belonging  to  or  held  in 
trust  for  him  at  the  time  of  the  commencement  of  this  ac- 
tion, except  such  i)rox)erty  as  is  by  law  exempt  from  exe- 
cution and  otherwise  exempted  by  law,  and  except  where 
the  trust  has  been  created  by,  or  the  fund  so  held  in  trust 
has  proceeded  from,  some  x)erson  other  than  said  C.  D. 

[If  there  be  real  estate  add  :  And  also  to  direct  a  written 
assignment  and  conveyance  to  said  receiver  of  the  real  es- 
tate of  the  said  C.  D.,  mentioned  and  described  in  the  com- 
plaint. ] 

And  it  is  further  ordered,  that  said  defendant,  C.  D.,  do 
appear  and  attend,  from  time  to  time,  and  whenever  sum- 
moned or  required  so  to  do,  before  said  referee,  and  pro- 
duce such  books,  accounts  and  papers,  and  submit  to  such 
examination  as  the  said  referee  shall  direct,  in  relation  to 
any  matter  which  he  may  lawfully  be  required  to  disclose.' 


No.  876. 
Assignment  to  Receiver  in  Creditor's  Suit. 

(Code  Civ.  Pro.,  §  1877.) 

This  indenture,  made  the day  of ,  18 — , 

between  C.  D.,  of ,  of  the  first  part,  and  T.  M.,  of 

,  a  receiver  appointed  by  the  [Supreme  Court  of  the 

State  of  New  York],  of  the  second  part. 

Whereas,  in  and  })y  an  order  of  the  [Supreme  Court  of 
the  State  of  New  York],  made  at  a  [Special]  Term  of  said 

court,  held  at ,  on  the day  of  , 

18 — ,  in  a  certain  cause  joendins  in  said  court,  wherein  A. 
B.  is  plaintiff  and  C.  D.  is  defendant, 


»  From  a  13urb.  Ch.  Pr.  (2d  cd.),  715. 
96 


763*  Forms  Relating  to 

It  was  ordered,  that  it  be  referred  to  — as  referee, 

to  appoint  a  receiver  of  all  the  debts,  property,  equitable 
interests  and  things  in  action  of  the  said  party  of  the  hrst 
part  at  the  time  of  the  commencement  of  this  action,  to  wit: 

on  the day  of ,  18 — ,  and  to  take  from  such 

receiver  the  requisite  security  for  the  faithful  performance 
of  his  duties. 

And  it  was  further  ordered,  that  the  said  party  of  the 
first  part  assign,  transfer  and  deliver  over  to  such  receiver, 
on  oath,  under  the  direction  of  the  said  referee,  all  the 
property,  real  and  personal,  and  all  contracts  for  the  pur- 
chase of  land  and  all  other  equitable  interests,  things  in 
action  and  other  effects  which  belonged  to  or  were  held  in 
trust  for  said  party  of  the  first  j)art,  or  in  which  he  liad  any 
beneficial  interest  at  the  time  of  the  commencement  of  said 
action,  as  aforesaid,  excepting  as  hereinafter  is  excepted; 
and 

Whereas,  the  said  party  of  the  second  part  has  been  duly 
appointed  said  receiver  and  has  given  and  filed  the  requisite 
security,  pursuant  to  law  and  the  provisions  of  said  order. 

Now,  this  indenture  witnesseth,  that  the  said  party  of 
the  first  part,  in  obedience  to  the  said  order,  and  in  con- 
sideration of  the  premises  aforesaid  and  of  one  dollar  to 
him  in  hand  paid  by  the  said  party  of  the  second  part,  at 
or  before  the  ensealing  and  deliver}'-  of  these  presents,  the 
receipt  whereof  is  hereby  acknowledged,  hath  granted, 
bargained,  sold,  conveyed,  assigned  and  delivered  over  to 
the  said  party  of  the  second  part,  under  the  direction  of  the 
referee  appointed  by  said  order,  testified  by  his  approval 
endorsed  hereon,  all  and  every  the  estate,  real  and  per- 
sonal, chattels  real,  money,  outstanding  debts,  things  in 
action,  equitable  interests,  property  and  effects,  whatsoever 
and  wheresoever,  of  or  belonging,  or  due  to  or  held  in  trust 
for  the  said  party  of  the  first  part,  or  in  which  he  had  any 
right,  title  or  interest  at  the  time  of  the  commencement  of 

this  action,  to  wit :  on  the day  of ,  18 — 

(excepting  from  the  property  hereby  conveyed,  any  prop- 
erty which  is  expressly  exempted  by  law  from  levy  and 
sale,  by  virtue  of  an  execution  ;  and  excepting,  also,  any 
money,  thing  in  action  or  other  property  held  in  trust  for 


Judgment  Creditok's  Action..  763 

said  C.  D.,  where  such  trust  has  been  created  by,  or  the 
fund  so  held  in  trust  has  proceeded  from,  a  person  other 
than  the  said  party  of  the  first  part,  and  excepting  the 
earnings  of  the  said  C.  D.  for  his  personal  services  rendered 
within  sixty  days  next  before  the  commencement  of  said 
action,  it  having  been  made  to  apj^ear,  by  the  oath  of  said 
C.  D.,  that  those  earnings  are  necessary  for  the  use  of  a 
family  supported  in  whole  [or  in  part]  by  his  labor) ; '  also 
hereby  transferring  and  conveying  to  said  party  of  the  second 
part  all  deeds,  writings,  leases,  muniments  of  title,  books  of 
account,  papers,  vouchers,  and  other  evidences  relating  or 
appertaining  to  the  property,  equitable  interests,  things 
in  action  and  effects  hereby  granted  and  conveyed  or  in- 
tended so  to  be,  to  have  and  to  hold  the  same  unto  him,  the 
said  party  of  the  second  part,  as  such  receiver  as  aforesaid, 
and  to  his  successors  and  assigns,  subject  to  the  present 
and  future  order,  direction  and  control  of  the  said  [Su- 
preme] Court ;  and  for  the  better  and  more  effectually 
enabling  the  said  party  of  the  second  part,  his  successors 
and  assigns,  to  recover  and  receive  all  or  any  part  of  the 
estate,  property,  book  debts,  things  in  action  and  effects 
hereby  granted,  conveyed,  assigned  and  transferred,  he, 
the  said  party  of  the  first  part,  hath  made  and  aj)pointed, 
and  by  these  presents  doth  make  and  appoint  the  said 
party  of  the  second  part,  his  successors  and  assigns,  the  at- 
torney of  him,  the  said  ])iutj  of  the  first  part,  in  his  name 
or  otherwise,  to  commence,  continue,  discontinue  and  again 
bring,  perfect  and  carry  out  actions  and  suits  against  any 
corporate  company,  association,  firm,  jjerson  or  persons  for 
or  on  account  of  all  or  any  part  of  the  said  estate,  property, 
equitable  interests,  things  in  action  or  effects. 

In  witness  whereof,  the  said  party  of  the  first  part  hath 
hereunto  set  his  hand  and  seal  the  day  and  year  first  above 
written. 

C.  D.     [L.  s.] 

Sealed  and  delivered  in  the  presence  of . 

[Acknowledgment  or  proof  as  in  forms  Nos.  340,  538.] 

Indorsed. 
I  ajjprove  of  the  within  assignment  and  direct  that  the 


'  See  section  1879  of  Code  Civ.  Pro.,  as  to  property  excepted. 


764  FuKMs  Relating  to 

party  of  the  first  part  therein  named  execute  the  same  and 
deliver  it  to  the  party  of  the  second  part. 

T.  M.,  Referee. 


No.  877. 

Notice  of  Motion  for  Leave  to  Make  a  Supplemental  Com* 
plaint  in  Judgment  Creditor's  Action. 

[Title  of  cause.] 

Sir — Take  notice,  that  upon  the  affidavit,  a  copy  of  which 
is  hereto  annexed  and  herewith  served  upon  you,  and  upon 
the  pleadings  and  proceedings  in  the  above  entitled  action, 
a  motion  will  be  made  at,  etc.,  on,  etc.,  for  j)ermission  to 
make  a  supplemental  complaint  in  this  action,  in  addition 
to  {or  in  place  of]  the  former  complaint  herein,'  alleging 
the  facts  which  are  contained  in  the  said  affidavit  \or  a  copy 
of  which  supplemental  complaint  is  hereto  annexed],  and 
for  such  other  and  further  relief  as  may  be  proper. 
Yours,  etc., 

M.  N".,  Plaintiff''  s  Attorney. 
[Office  address,'] 
To  C.  P.,  Defendant's  Attorney. 


No.  878. 

Affidavit  on  Motion  for  Leave  to  Make  Supplemental  Com- 
plaint in  Judgment  Creditor's  Action. 

[Title  of  cause.] 

County,  ss.: 

A.  B.,  of ,  being  duly  sworn,  says,  that  this  ac- 
tion was  commenced  for  the  purpose  of  compelling  the  dis- 
covery by  the  defendant,  a  judgment  creditor  of  the  plaintiff, 

*  By  section  544,  Code  Civ.  Pi"0.,  the  the  case  presented  by  the  original 
party  may  api>ly  for  leave  to  make  a  and  sujiplemental  jileadings.  See  also 
supplemental  pleading  either  in  addi-  Gerstein  v.  Fisher  (12  Misc.,  211),  Pat- 
tion  to  or  in  place  of  the  former  plead-  terson  v.  Hare  (74  Hun,  2G9),  I3rown 
ing.  In  the  former  event,  if  the  ap-  v.  May  [No.  2],  (17  Abb.  N.  C,  208). 
plication  is  granted,  a  provisional  Deyo  v.  Morss  (74  Hun,  224),  Oelber- 
remedy,  or  other  proceeding  already  man  v.  New  York  &  Northern  R.  R. 
taken,  in  the  action,  is  not  affected  by  Co.  (31  Abb.  N.  C,  256),  among  other 
the  supplemental  pleading ;  but  the  recent  cases  as  to  supplemental  corn- 
right  of  th-e  adverse  party  to  have  it  plaint, 
vacated   or  set  aside,  depends  upon        '  See  note  2  to  form  No.  122. 


Judgment  Ckeditok's  Action.  766 

of  property  of  said  defendant,  and  for  other  relief,  as  ap- 
pears by  the  complaint  therein. 

That  the  summons  and  complaint  therein  were  served  on 

the  defendant  on  the day  of ,  18 — ,  and 

that  1:he  defendant  has  answered  the  said  complaint,  and 
said  actijn  is  at  issue  upon  said  complaint  and  answer  [or 
state  other  proceedings  in  suit]. 

That  said  action  is  triable  in  the  county  of . 

That  before  any  further  proceedings  were  had  in  said  ac- 
tion [state  the  supplemental  matter]. 

And  deponent  further  shows,  that  said  facts  occurred 
after  his  former  complaint  \or  that  deponent  was  ignorant 
of  said  facts  when  said  former  complaint  was  made].' 

A.  B. 

[Jurat  as  in  form  No.  46.] 


No.  879. 

Order  Granting  Leave  to  Make  Supplemental  Complaint  in 
Judgment  Creditor's  Action. 

[At,  etc.,  as  in  form  No.  80.] 
[Title  of  cause.] 

On  reading  and  filing  the  affidavit  of  A.  B.,  dated , 

18 — ,  and  [name  motion  joapers],  and  on  motion  of , 

counsel  for  the  plaintiff,  after  hearing,  etc. : 

Ordered,  that  the  plaintiff  have  leave  to  make  a  supple- 
mental complaint  in  this  action,  in  addition  to  [or  in  place 
of],  the  former  complaint  herein,'  alleging  the  facts  which 
are  contained  in  the  said  affidavit  [or  a  copy  of  which  com- 
plaint is  annexed  to  said  affidavit],  within days 

from  the  date  of  this  order,  on  payment  to  the  defendant 
of dollars  costs  of  this  motion.' 

'  See  section  544,  Code  Civ.  Pro.  be  e.xercised  reasonably,  and  not  capri- 
'  See  note  1  to  form  No.  877.  ciously  or  willfully.  (Spears  v.  May- 
»  The  power  of  the  court  to  which  or,  etc.,  of  New  York,  72  N.  Y.,  442.) 
u  motion  is  made  for  leave  to  put  in  a  When  sufficient  reasons  appear  for 
supplemental  pleading?,  is  the  same  the  refusal  of  the  leave  by  the  court 
now  as  it  was  T)efore  the  present  Code,  below,  an  appeal  fronj  the  order  re- 
It  has  still  a  discretion  to  permit  or  re-  fusing,'  will  In-  dismissed.  (Id.) 
fuse  such  a  pleading,  subject  only  to  See,  also,  Flcischman  v.  Bennett  (79 
the  limitation  that  the  discretion  must  N.  Y.,  570),  Prouty  v.  Luke  Shore  and 


766  Forms  Relating  to 

No.  880. 
Supplemental  Coiiiplaiiit  in  Judgment  Creditor's  Action. 

[Title  ofcciuse.J 

The  supplemental  complaint  of  the  plaintiff  respectfully 
shows  [on  behalf  of  himself  and  all  other  creditors  of  C.  J). 
entitled  under  the  original  complaint  to  come  in  and  con- 
tribute to  the  expenses  of  this  action],  that  the  above  enti- 
tled action  was  commenced  in  this  court  on  the 

day  of ,  18 — ,  against  the  defendant,  C.  D.,  by  the 

service  of  a  summons  and  cox:)y  of  complaint,  to  which 
original  complaint  the  plaintiff  refers  as  a  part  of  this  sup- 
plemental complaint. 

That  an  injunction  order  w^as  granted  in  said  action  on 

the day  of ,  18 —  [set  forth  the  proceed 

ings  in  the  action,  and  the  matters  which  have  rendered  a 
supplemental  complaint  necessary]. 

That  said  facts,  stated  in  this  supplemental  complaint, 
have  occurred  since  the  former  com2:)laint  was  made  [or  that 
the  plaintiff  was  ignorant  of  said  facts  stated,  etc.,  at  the 
time  the  former  complaint  was  made.] 

Wherefore  the  i^laintiff  demands  judgment,  as  is  de- 
manded by  the  said  original  complaint  [and  that  the  said 
assignment  may  be  set  aside  ;  that  the  property  assigned 
be  delivered  to  a  receiver,  etc.,  and  that  the  defendants  may 
be  restrained  by  injunction  from  disposing  of  any  of  the 

said  assigned  property].' 

M.  N.,  Plamtf'J^s  Attorney. 
[OfRce  address.''] 
[Verification  as  in  forms  Nos.  151,  etc.] 

M.  S.  R.  R.  Co.  (85  N.  Y.,  272),  Mc-  as  to  cases  in  which  a  supplemental 

Donald  v.  Davis  (12  Hun,  95),  Ang-ell  pleading  will  or  will  not  be  allowed. 
V.   Lawton    (14    Hun,  70),  Latham  v.         As  to  terms  on  which  leave  will  be 

Richards    (15    Hun,   129),    Fincke    v.  granted,    see  Wilcox   v.    Dag-g-ett   (15 

Rourke  (20  Hun,  2(34),  Ratzer  v.  Rat-  Week.  Dig-.,  208). 

zer  (2  Abb.  N.  C,  461),  Townsend  v.  Ordinarily  the  party  should  be  al- 
Simpson  (13  Week.  Dig-.,  450),  Holly  lowed  to  put  in  a  supplemental  answer, 
V.  Graf  (29  Him,  443),  Cornwall  v.  without  regard  to  the  question  whether 
Cornwall  (30  Hun,  573),  Tifl'tv.  Bloom-  the  court  thinks  the  defense  to  be  a 
berg  (18  Week.  Dig.,  277),  Pierson  v.  good  one,  unless  it  is  clearly  bad  or 
Ci-onk  (28  Week.  Dig.,  280).  Patterson  frivolous,  (Mitchell  v.  Allen,  25  Hun, 
V.  Hare  (74  Hun,  269),  Gerstein  v.  543  ;  21  W.  D.,  257.)  Gerstein  v.  Fish- 
Fisher  (12  Misc  ,  211),  Haas  v.  Colton  er  (12  Misc.,  211). 

(id.,  308),  Frisbie  v.  Averell  (87  Hun,         'See  Johnson  v.  Snyder  (7  How.  Pr., 

217),  and  see  note  1  to  form  No.  877  395 ;  2  Barb.  Ch.  Pr.,  70  [2d  ed.]),  and 


Action  on  Official  Bond.  767 


Akticle  Second. 

forms  relating  to  action  by  a  private  person  upon 
an  official  bond. 

(Code  Civ.  Pro.,  Cli.  15,  Tit.  4,  Art.  2.) 

No.  881.     Affidavit  on  applicatiou  for  leave  to  prosecute  sheriff's  official  bond. 
883.     Order  granting  leave  to  prosecute  sheriff's  bond. 

883.  Indorsement   upon  execution  issued  upon  a  judgment  recovered 

upon  sheriif' s  bond. 

884.  Complaint  in  action  upon  sheriff's  bond. 

885.  Answer  under  section  1884  of  Code  of  Civil  Procedure  by  surety 

upon  sheriff's  bond. 

886.  Affidavit  to  move  for  ratable  distribution  of  moneys  collected  out  of 

sureties  in  sheriff's  bond. 

887.  Notice  of  motion  for  ratable  distribution  of  moneys  collected  from 

sureties  in  .sheriff's  bond. 

888.  Order  directing  ratable  distribution,  or  of  reference  upon  such 

motion. 


No.  881. 

A£Sdayit  on  Application  for  Leave  to  Prosecnte  SlieriJf's 

Official  Bond. 

(Code  Civ.  Pro.,  §  1880.) 

County,  ss.: 


A.  B.,  of ,  being  duly  sworn,  says,  that  [set  forth 

cause  of  action  against  sheriff  for  escape  or  other  actionable 
default  or  misconduct  in  his  office  (or  set  forth  recovery  of 
judgment  against  the  sheriff  for  the  escape,  etc.,  and  return 
of  execution  unsatisfied)].' 

That  satisfaction  of  the  said  claim  [or  of  said  Judgment 
or  of  the  claim  upon  which  it  was  rendered]  has  not  been 
received. 

[That  said  amount  has  been  duly  demanded  of  said 
M.  N.-] 

That  said  M.  N.  is,  as  deponent  believes,  individually 

see  note  3  to  form  No.  879,  and  note  1  *  If  the  default  consists  of  the  non- 

to  form  No.  877.  payment  of  money,  and  special  pro- 

'  See  note  2  to  form  No.  122.  vision  is  not  olherwise  made  by  law.  it 

'  It  is  not  necessary  to  show  the  re-  must  apjM'ar  that  it  has  been  demanded 

covery  of  a  previous  judgment  airainst  of  the  sheriff,   or  tliat  such   demand 

the  sheriff.     (^ parte  Chester,  5  Hill,  cannot  be  made  willi  due  diligciicp. 

555.)  (Code  Civ.  Pro.,  §  1891.)    But  .such 


768  Forms  Relating  to 

unable  to  respond  in  damages  for  the  said  escape  \or  de- 
fault, or  misconduct].' 

That  no  previous  application,  etc.  [as  in  form  No.  209 
from  (t)  substituting  for  "injunction  order,"  as  follows: 
order  granting  leave  to  prosecute  such  bond  for  the  said 
escape,  etc.]. 

A.  B. 

[Jurat  as  in  form  No.  46.] 

[Annex  certified  copy  of  bond.] 


No.  882. 
Order  Granting  Leave  to  Prosecute  Sheriff's  Bond. 

(Code  Civ.  Pro.,  §  1881.) 

[At,  etc.,  as  in  form  No.  80.] 
[Title  of  proceeding.] 

On  reading  and  filing  the  affidavit  of  J.  D.,  dated  — 


18 — ,  together  v^ith  a  certified  copy  of  the  official  bond  of 

M.  N.,  sheriff  of county  • 

It  is  hereby  ordered,  on  motion  of  E.  F.,  counsel  for  said 
J.  J).,  that  the  said  J.  D.  have  leave  to  mantain  an  action 
upon  the  said  bond  in  this  court  for  the  escape  \or  default, 
or  misconduct]  set  forth  in  said  affidavit  in  his  own  name 
as  plaintiff,  as  if  he  was  the  obligee  nam^d  in  said  bond.* 

proof  is  not  necessary,  where  the  ap-  Hollingsworth   (83  Hun,  127),  Adams 

plicant    has    recovered    a    judgment  v.  Tater  (42  Hun,  384),  Lewis  v.  Doug- 

against  the  officer.     (Id.)  las  (53  Hun,  587),  Taylor  v.  Fitch  (14 

See,  also,  Rhinelander  v.  Mather  (5  "Week.  Dig.,  335). 

"Wend.,  102).  The   application  may  be   made   to 

^See    Anderson     v.     Hitchcock    (2  the  Supreme  Court.     (Code  Civ.  Pro., 

"Wend.,  299).  §1880,  as  amended  by  ch.  946  of  Laws 

See,  also.  Matter  of  Chamberlain  (42  of  1895,  taking  effect  Jan.  1,  1896.) 

Barb.,  281;  28  How.  Pr.,  1;  18  Abb.,  As  to  successive  applications  by  same 

103),  as  to  application.  person  to  maintain  actions  upon  the 

As  to  liability  of  sheriff  for  which  same  bond  for  other  defaults  or  mis- 

his  bond  may  be  prosecuted,  see  Peo-  conduct,  see   section  1882,  Code  Civ. 

pie  ex  rel.  Kellogg  v.  Schuyler  (4  N.  Pro.,  as  amended  by  same  chapter. 

Y.  173),  Dennison  v.  Plumb  (18  Barb.,  The  apphcation  may  be  made  with- 

89),  Pond  v.  Leman  (45   Barb.,  152),  out  notice  ;  but  in  that  case,  the  offi- 

Cumming  v.  Brown  (43  N.  Y.,  514),  cer,  or  either  of  his  sureties,  may  ap- 

People  ex  rel.  Comstock  v.  Lucas   (93  ply,  upon  notice,  to  vacate  an  order 

N.  Y.,  585 ;  rev'g  S.  C,  25  Hun,  610),  permitting  the  applicant  to  maintain 

Bishop  V.  Mosher  (65  Hun,  519),  "Whit-  an  action,  upon  any  ground  showing 

man  v.  Haines   (21   State  Rep.,  41),  that  it  ought  not  to  have  been  granted. 

Crousev.  Bailey  (32  State  Rep.,  394),  (Code   Civ.    Pro.,   §   1892;  Matter  of 

Grant  v.  Tefft  (29  id.,  496),  Reilly  v.  Chamberlain,  42  Barb.,  281 ;  S.  C,  18 

Dodge   (131    N.  Y.,  153),  Koehler  v.  Abb.,  103;  28  How.  Pr.,  1.) 

Gorman  (3  Misc.,  621),  McConihe  v.  *  See  notes  to  form  No.  881. 
Palmer   (76   Hun,    116),   Norcross   v. 


Action  on  Official  Bond.  769 

No.  883. 
Complaint  in  Action  upon  Sheriif' s  Bond. 

(Code  Civ.  Pro.,  §  1881.) 

[Title  of  cause.  J 

The  complaint  of  the  above  named  plaintiff  respectfully 

shows,  that  heretofore  and  on  or  about  the day  of 

,  18 — ,  the  defendants,  by  their  certain  writing  ob- 
ligatory, sealed  with  their  seals  and  dated  on  the  day  last 
aforesaid,  acknowledged  themselves  to  be  held  and  firmly 
bound  unto  the  people  of  the  State  of  New  York,  in  the 

sum  of dollars,  for  which  payment,  well  and  truly  to 

be  made,  the  said  defendants  bound  themselves,  their  heirs, 
executors  and  administrators  firmly  by  the  said  writing  ob- 
ligatory. 

And  the  said  plaintiff  further  shows,  that  the  said  writing 
obligatory  was  and  is  subject  to  a  condition  thereunder 
written,  whereby  after  reciting  that  "whereas,  the  above 
bounden,  A.  B.,  hath  been  elected  to  the  office  of  sheriff  of 

the  county  of ,  at  a  [general]  election  held  therein 

on  the day  of  [November],  18 — ,"  it  is  provided, 

that  if  the  said  A.  B.  should  well  and  faithfully  in  all  things 
perform  and  execute  the  office  of  sheriff  of  the  said  county 

of during  his  continuance  in  said  office,  by  virtue 

of  the  said  election,  without  fraud,  deceit  or  oppression, 
then  the  said  obligation  to  be  void,  or  else  to  remain  in  full 
force. 

And  the  said  plaintiff,  for  assigning  a  breach  in  the  said 

writing  obligatory,  says,  that  heretofore,  on  the 

day  of ,  18 — ,  the  said  plaintiff"  recovered  a  judg- 
ment in  the court  in  his  favor  against  C.  1).  for  the 

sum  of dollars,  the  judgment  roll  upon  which  judg- 
ment was  filed,  and  said  judgment  was  duly  docketed  in  the 
said  county  of ,  on  the  day  last  aforesaid. 

That  an  execution  against  the  property  of  the  said  C.  D. 

was  duly  issued  upon  said  judgment,  on  the day 

of ,  18—,  and  delivered  to  the  said  A.  B.  as  such 

sheriff,  by  which  he  was  directed  to  satisfy  the  said  judg- 
ment and  to  collect  the  said  sum  of  dollars,  with 

interest  thereupon  fjom  the day  of ,  18 — , 

then  actually  due  thereupon,  out  of  the  i^ersonal  property 
97 


770  Forms  Relating  to 

of  the  said  CD.,  and  if  sufficient  personal  property  could 
not  be  found,  out  of  the  real  property  belonging  to  him  at 
the  time  when  said  judgment  was  docketed  in   the  clerk's 

office  of  the  county  of ,  or  at  any  time  thereafter ; 

and  to  return  said  execution  to  the  clerk  of  the  county  of 
within  sixty  days  after  the  receipt  thereof. 

That  by  virtue  of  said  execution  the  said  A.  B.,  who  was, 
at  the  time  of  such  delivery  thereof  to  him  and  from  thence, 
until  and  at  and  after  the  day  of  the  return  thereof,  sheriff 

of  the  said  county  of afterwards  and  before  the 

said  return  day  of  said  writ,  to  wit :  on  the day  of 

,  IS — ,  and  within  the  said  county  of seized 

and  took  divers  goods  and  chattels  of  said  C.  D.  of  great 
value,  to  wit :  of  the  value  of  the  moneys  so  directed  to  be 
levied  and  collected  as  aforesaid,  and  then  and  there  levied 
the  same  thereout ;  but  did  not,  nor  has  he  paid  the  said 

amount  of dollars  so   collected  by  him,  nor  any 

part  thereof,  to  the  said  plaintiff  [nor  has  he  returned  said 
writ  as  he  was  thereby  commanded  and  required  to  do]. 

[That  on  the day  of ,  18 — ,  the  plaintiff 

duly  demanded  of  the  said  A.  B.  the  amount  so  collected 
by  him  as  such  sheriff,  but  that  the  said  A.  B.  did  not  X)ay 
the  said  amount  {or  allege  that  a  demand  cannot  be  made, 
with  due  diligence),  and  that  satisfaction  of  the  same  or 
of  any  part  thereof  has  not  been  received.'] 

That  on  the day  of ,  18 — ,  the  plaintiff 

recovered  a  judgment  in  the Court  against  the  said 

A.  B.,  as  such  sheriff,  for  the  sum  of dollars,  for 

the  damages  which  the  said  j^laintiff  had  sustained  by 
reason  of  the  neglect  of  the  said  defendant,  A.  B.,  as  such 

sheriff  of  the  county  of as  aforesaid  [as  well],  in 

not  paying  over  and  rendering  unto  the  said  plaintiff  the 
money  so  as  aforesaid  directed  to  be  levied  and  collected 
as  aforesaid  by  the  said  writ,  and  which  had  been  levied 
and  collected  by  him,  the  said  A.  B.,  as  such  sheriff  as 
aforesaid  [as  for  not  returning  the  said  writ  according  to 
the  exigency  thereof,  as  he  was  by  the  said  Avrit  commanded 

'  It  is  not  necessary  to  allege  a  de-  default  does  not  consist  in  the  non- 
mand,  if  a  judgment  has  been  recov-  payment  of  money.  (Code  Civ.  Pro., 
ered  against  the  sheriff,  or  where  the    §  1891.) 


Action  on  Official  Bond.  771 

as  aforesaid],  and  also  for  the  sum  of dollars  for 

the  costs  and  charges  of  the  said  plaintiff  in  the  said  last 
mentioned  suit,  whereby  the  said  plaintiff  sustained  fur- 
ther damages  to  the  amount  of  the  said  last  mentioned 
costs  and  charges  [or  any  other  cause  of  action  may  be  sub- 
stituted for  that  above  set  forth,  as  provided  by  section 
1880,  Code  Civil  Procedure]. 

That  leave  has  been  granted  to  the  plaintiff  by  an  order  of 

the Court,  duly  made  at  a  [Si^ecial]  Term  thereof, 

held  at,  etc.,  on,  etc.,  and  entered  in county  clerk's 

office,  on  the day  of ,  18 — ,  to  maintain  an 

action  upon  the  said  official  bond  of  said  A.  B.,  as  such 
sheriff,  for  the  default  of  the  said  A.  B.  as  aforesaid. 

Wherefore  the  plaintiff  demands  judgment  against  the 

said  defendants  for dollars  and cents,  with 

costs  of  this  action.' 

E.  F.,  Plaintiff's  Attorney. 
[Office  address."] 

[Verification  as  in  forms  Nos.  151,  etc.] 


No.  884. 

Indorsement  upon  Execution  Issued  upon  a  Judgment  Re- 
covered upon  Sheriff's  Bond. 

(Code  Civ.  Pro.,  §  1883.) 

As  in  form  No.  560,  adding  as  follows :  You  are  directed 
to  collect  said  amount,  in  the  first  place,  out  of  the  prop- 
erty of  the  defendant,  M.  N.  [naming  the  sheriff],  and  if  suffi- 
cient property  of  the  said  M.  N.  cannot  be  found,  then  to 
collect  the  deficiency  out  of  the  property  of  the  defendants, 
I.  J.  and  K.  L.  [naming  the  sureties].' 

'  See  note  1   to  form  No.  881 ,  as  to  •''  The  execution  is  i.ssued  to  the  coro- 

liahility  of  sheriff  for  wliirli  his  bond  ners,  or  a  i)articiihir  coroner,  of  the 

may  be  pro.secuted,  and  4  Keyes,  93.  county  where  the  .sheriff  is  a  party. 

"  See  note  2  to  form  No.  133.  (Code  Civ  Pro.,  §§  173,  1362.) 


772  FoKMs  Relating  to 

No.  885. 

Answer  under  Section  1884  of  Code  Civil  Procedure  by 
Surety  upon  Sheritt's  Bond. 

(Code  Civ.  Pro.,  §  1884.) 

[Title  of  cause.] 

And  the  defendant,  I.  J.  [further]  answering,  says,  that 
he  [and  the  defendant,  K.  L.  {or  that  the  defendant,  K.  L.)], 
has  [or  have]  been  or  will  be  compelled  for  want  of  suffi- 
cient property  of  the  defendant,  M.  N.  [naming  the  sheriff], 
to  pay  upon  a  judgment  [or  judgments]  recovered  against 
him  [or  them],  upon  the  same  bond  mentioned  in  the  said 
complaint,  [*]  an  aggregate  amount  exclusive  of  costs,  offi- 
cers' fees  and  exjjenses,  equal  to  the  sum  for  which  the  said 
defendant,  I.  J.,  is  liable  by  reason  of  the  said  bond  [or  if 
less  than  the  amount  of  plaintiff's  demand,  say  from  (*) 

as  follows :    the  sum  of dollars,  for  which  said 

defendant  claims  to  be  allowed  in  this  action  as  a  partial 
defense  thereto]. 

A.  F.,  Defendant' s  Attorney. 
[Office  address.'] 

[Verification  as  in  forms  Nos.  151,  etc.] 


No.  886. 

Affidavit  to  Move  for  Ratable  Distribution  of  Moneys  Col- 
lected out  of  Sureties  in  Sheriff's  Bond. 

(Code  Civ.  Pro.,  §  1885.) 

County,  ss.  : 


A.  B.,  of  ,  being  duly  sw^orn,  says,  that  on  the 

day  of ,  18 — ,  an  order  was  made  by  the 

Court   granting   leave   to  deponent   to  prosecute 


the  official  bond  of  M.  N.,  sheriff  of county,  for 

the  collection  of  a  claim  against  said  M.  N.,  in  favor  of  said 
deponent,  for  the  escape  of  a  prisoner  committed  to  his  cus- 
tody [or  state  other  actionable  default  or  misconduct  in  his 
office]. 

That  actions  are  now  pending  upon  said  bond  as  follows 
[so   far  as  deponent  has  any  knowledge,   information  or 

'  See  note  2  to  form  No.  122. 


Action  on  Official  Bond,  773 

belief  thereof],  to  wit  [describe  such  actions,  stating  name 
of  plaintiffs'  attorneys  and  amounts  for  which  they  are 
brought,  respectively],  and  that  judgments  have  been  here- 
tofore recovered  upon  said  bond  and  remain  uncollected 
as  follows  [state  such  judgments,  giving  names  of  parties, 
amounts  thereof  and  names  of  plaintiffs'  attorneys]. 

That  the  aggregate  amount  of  the  liabilities,  which  might 
be  [and  have  been]  recovered  by  actions  upon  the  said  bond, 
is  at  least dollars,  according  to  the  best  of  de- 
ponent's knowledge,  information  and  belief,  and  exceeds 
the  sum  for  which  I.  J.  and  K.  L.,  the  sureties  therein,  are 

liable,  the  pe^nalty  of  said  bond  being  the  amount  of 

dollars. 

A.  B. 

[Jurat  as  in  form  No.  46.] 


No.  887. 

Notice  of  Motion  for  Ratable  Distribution  of  Moneys  Col- 
lected from  Sureties  in  Sheriff's  Bond. 

(Code  Civ.  Pro.,  g  1885.) 

[Title  of  cause  or  j)roceeding.  ] 

Sir — Take  notice,  that  upon  the  affidavit,  with  a  copy  of 
which  you  are  herewith  served,  a  motion  will  be  made  at, 
etc.,  on,  etc.,  for  an  order  directing  and  providing  for  the 
distribution  of  the  moneys  collected  out  of  the  property 
of  I.  J.  and  K.  L.,  the  sureties  in  the  official  bond  of  M.  N., 

sheriff  of  county,  among  the  persons  in  favor  of 

whom  the  said  liabilities  have  accrued  in  the  proportion  to 
the  amount  which  each  one  is  entitled  to  recover,  to  be  ascer- 
tained by  a  reference,  or  in  such  other  manner  as  the  court 
directs,  and  for  such  other  or  further  relief  as  may  be 
proper. 

Yours,  etc., 

E.  F.,  Attorney/  for . 

[Office  address.'] 

To  T.  R.,  Attorney  for  — ,  and  S.  T.,  Attorney  for 


Until  the  hearing  and  decision  of  the  motion  mentioned 


'  See  note  2  to  form  No.  122. 


774  Forms  Relating  to 

in  the  within  [or  foregoing]  notice,  the  payment  to  the 
plaintiffs  in  the  actions  mentioned  in  the  annexed  affidavits, 
or  any  of  them,  of  any  sum  collected,  or  to  be  collected, 
by  any  judgment  rendered  therein,  is  hereby  forbidden. 

Dated ,  18—. 

A.  O.,  Judge  [or  Justice]  of  the Court, 


No.  888. 

Order   Directing   Ratable   Distribution  or   of  Reference 
upon  sucli  Motion. 

(Code  Civ.  Pro.,  §  1885.) 

[Title  of  cause  or  proceeding.] 

On  reading  and  filing  the  affidavit  of  A.  B.,  dated , 

18 — ,  and  [name  other  motion  papers],  with  proof  of  due 
service  of  said  affidavit,  and  notice  of  this  motion  on  T.  R., 

attorney  for ,  and  S.  T.,  attorney  for ,  and 

on  motion  of  E.  F. ,  of  counsel  for ,  after  hearing, 

etc.: 

It  is  hereby  ordered,  that  it  be  and  hereby  is  referred  to 
M.  B.,  to  ascertain  the  amount  which  each  of  the  persona 
is  entitled  to  recover,  in  whose  favor  liabilities  have  ac- 
crued upon  the  official  bond  of  M.  N.,  sheriff  of 

county  ;  and  the  payment  to  the  plaintiff,  in  any  action,  of 
any  sum  collected  or  to  be  collected  by  virtue  of  the  judg- 
ment therein  is  hereby  forbidden,  until  the  further  order  of 
the  court  hereupon. 

\0r  the  order  may  provide  for  the  distribution,  if  practi- 
cable, without  a  reference.] 


Article  Third. 


FORMS   RELATING  TO  ACTION  BY  A  PRIVATE  PERSON  FOR  A 
PENALTY  OR  FORFEITURE, 

(Code  Civ.  Pro.,  Ch.  15,  Tit.  4,  Art.  3.) 

No.  889,  Complaint  in  action  for  penalty  and  damages,  given  by  section  1436 
of  Code  Civil  Procedure,  against  a  sheriff,  for  selling  real  estate 
contrary  to  chapter  13  of  Code  Civil  Procedure. 


Action  for  Penalty,  etc.  775 

No.   890.     Complaint  in  action  for  penalty  given  by  statute,  to  any  person  -svlio 
sues  tlierefor. 
891.     Indorsement  upon  summons  in  action  to  recover  penalty  or  forfeit- 
ure, where  complaint  is  not  served. 


No.  889. 

Complaint  in  Action  for  Penalty  and  Damages  Given  by 
Section  1436  of  Code  of  Civil  Procedure,  Against  a  Sher- 
iff, for  selling  Real  Estate  Contrary  to  Chapter  13  of 
Code  of  Civil  Procedure. 

(Code  Civ.  Pro.,  §  1893.) 

[Title  of  cause.] 

The  i)laintiff  complains  of  the  defendant,  and  alleges, 
that  on  the day  of ,  18 — ,  the  plaintiff  re- 
covered a  judgment  against   one  E.   F.,   in   the 

Court,  for dollars,  the  judgment  roll  whereupon 

was  duly  filed  and  said  judgment  duly  docketed  in  the 

county  of ,  on  the  day  aforesaid  [and  a  transcript 

thereof  was  filed  and  said  judgment  duly  docketed  in  the 

clerk's  office  of county,  on  the day  of 

,  18-J. 

That  after  the  rendition  of  the  said  judgment  and  dock- 
eting thereof  as  aforesaid,  and  on  or  about  the 


day  of ,  18 — ,  an  execution  was  duly  issued  to  the 

defendant  as  sheriff  of  the  county  of against  the 

property  of  the  said  E.  F.  which  was  directed  to  said  sheriff, 
and  required  the  said  sheriff  to  satisfy  the  said  judgment 
upon  which  was  therein  stated  to  be  actually  due,  at  the 

time  of  its  issue,  the  sum  of dollars,  with  interest 

thereuiDon  from  the day  of ,  18 — ,  out  of 

the  personal  property  of  the  said  E.  F.,  and,  if  sufficient 
personal  property  could  not  be  found,  out  of  the  real  prop- 
erty belonging  to  him  at  the  time  when  the  said  judgment 

was  docketed  in  the  clerk's  office  of  the  county  of , 

or  at  any  time  thereafter,  and  was  delivered  on  tlie  said 

day  of ,  .18—,  to  the  said  defendant,  as 

such  sheriff,  to  be  executed  according  to  law. 

That  said  defendant  was,  at  tlu^  time  of  such  delivery 
[and  ever  since  lias  been,  and  still  is],  sheriff  of  the  said 
county  of . 


776  Forms  Relating  to 

And  the  said  plaintiff  further  says,  that  afterwards, 
to  wit :  on  the day  of ,  18—,  the  said  de- 
fendant, as  sheriff  aforesaid,  did,  by  virtue  of  the  said  wiit, 
and  of  the  statute  in  such  case  made  and  provided,  duly 
levy  upon  and  take  in  execution  the  following  real  prop- 
erty of  the  said  E.  F.,  to  wit  [describe  same],  and  altliough 
the  said  defendant  was,  by  virtue  of  the  said  writ,  and  of 
the  statute  in  such  case  provided  [to  wit :  of  section  1384 
of  the  Code  of  Civil  Procedure],  bound  to  sell  the  said 
premises  at  public  auction,  between  the  hour  of  nine  in  the 
morning  and  sunset  [or  if  the  case  require  it,  state  any  other 
duty  prescribed  in  the  said  statute,  and  which  the  sheriff 
violated] ;  yet  the  said  defendant,  as  sheriff  aforesaid,  con- 
trary to  his  duty  as  such  sheriff  and  the  aforesaid  statute, 
did  [state  the  particular  violation,  with  time,  place  and. 
other  particulars,  and  show  how  the  jjlaintiff  became  in- 
jured], whereby  the  said  defendant  became  liable  [by  virtue 
of  section  1436  of  the  Code  of  Civil  Procedure] '  to  pay  the 
said  plaintiff  [who,  the  said  plaintiff  alleges,  is  the  party 
injured  thereby]  the  sum  of  one  thousand  dollars,  and,  in 
addition  thereto,  the  damages  the  said  i)laintiff  has  sus- 
tained thereby,  to  wit :  the  sum  of dolLars. 

Wherefore  the  plaintiff  demands  judgment  against  the 
defendant  for  the  sum  of dollars,  and  for  the  costs 

of  this  action. 

C.  F.,  Plaint} ff''  s  Attorney, 
[Office  address.'] 
[Verification  as  in  forms  Nos.  151,  etc.] 

1  As  to  reference  to  the  statute  under  N.  Y.,  314),  Perry  v.  Edwards  (44  N. 

which  the  action  may  be  maintained,  Y.,  223),  People  v.  Kolb  (3  Abb.  Ct.  of 

see  People  v.  McCann  (67  N.  Y.,  506,  App.  Dec.,  529),  Meier  v.  Met.  Gas- 

and  Nellis  v.  N.  Y.  Cent.  R.  R.  Co.,  light  Co.  (14  Week.  Dig.,  552),  Paine 

30  id.,  505,  therein  cited).     See,  also,  v.  East  (15  Week.  Dig  ,  281). 

People  V.  Justices,  etc.  (12  Hun,  65),  As  to  limitation  for  comaiencement 

and  see  for  special  rules  relating  to  of  action,  see  section  983,  Code  Civ. 

this  class  of  actions,  Health  Dep't  of  Pro. 

N.  Y.  V.  Knoll  (70  N.  Y.,  530),  Con-  As  to  action  to  recover  penalty  or 

ley  V.  Palmer  (2  KY.,  182;  aff'gS.  C,  forfeiture,  not  exceeding  a  specified 

4  Denio,  374),  Fisher  v.  N.  Y.  C.  and  sum,  see  section  1898,  Code  Civ.  Pro., 

H.  R.  R.  R.  Co.,  46  N.  Y.,  644),  Suy-  and  Lammond  v.  Volans(14  Hun.  263). 

dam  V.  Smith  (52  N.  Y.,  383),  Verona  «  See  note  2  to  form  No.  122. 
Central  Cheese  Co.  v.  Murtaugh  (50 


Action  fok  Penalty,  etc.  777 

No.  890. 

Complaint  in  Action  for  Penalty  Given  by  Statute  to  any 
Person  who  Sues  Therefor. 

(Code  Civ.  Pro.,  §  1894.) 

[Title  ot  cause.] 

The  complaint  of  the  above  named  plaintiff  respectfully 
shows,  that  by  an  act  of  the  legislature  of  the  State  of  New- 
York,  entitled  "An  act,  etc.,"  passed,  etc.,  it  is  enacted  that 
[set  forth  the  provisions  of  the  act  prescribing  the  penalty 
or  forfeiture].* 

That  before  the  commencement  of  this  action,  and  on  or 

about  the day  of  ,  18 — ,   the  defendant 

[set  forth  violation  of  the  statute  by  which  penalty,  etc., 
has  been  incurred]. 

Wherefore  the  plaintiff  demands  from  the  said  defendant 
the  sum  of dollars  [insert  amount  of  penalty  pre- 
scribed by  the  statute],  together  with  the  costs  of  this 
action." 

M.  N.,  Plaintiff^ s  Attorney. 
[Office  address.'] 

[Verification  as  in  forms  Nos.  151,  etc.] 


No.  891. 

Indorsement  upon  Summons  in  Action  to  Recover  Penalty 
or  Forfeiture,  where  Complaint  is  not  Served. 

(Code  Civ.  Pro.,  §  1897.) 

According  to   the  provisions  of  [section of]* 

'  As  to  setting  fortli  statute,  see  the  tion  cannot  be  comjiromised  or  settled 

ca-ses  of  Peo])le  v.  McCann  and  Nollis  without  th(i  kuive  oi'the  court  in  which 

V.  N.  Y.  C.  R.  R.  Co.,  referred  to  in  it  is  brouj,'-ht. 

note  1  to  last  form  No.   889.     These  See,  also,  generally  as  to  actions  for 

decisions  were  made  under  2  R.  S.,  penalties,  etc.,  the  cases  cited  in  note 

480,  part  3,  ch.  8,  tit.  6,  §  1.     That  to  last  form  No.  8S9,   and  see  Iliggins 

title  was  repealed  hy  chajjter  245  of  v.  Dakin   (86   Hun,    401),    People   v. 

1880,  and  sections  1893  to  1898  of  Code  Briggs  (114  N.  Y.,  f)!] ;  alY'g  S.  C,  47 

Civ.   Pro.,    are   substituted    therefor.  Hun,  2GtJ),  IJellingcr  v.  IJirgf  (o4lIun, 

The  provi.sions  of  section  1,  giving  ».  511),  Langdon  v.  N.  Y.,  L.  10.,  etc.,  R. 

form  of  comjjlaint,  are  al;rogated,  and  Co.  (.58  iil.,  122),  Piilcn  v.  N.  Y.,  New 

the  general  jjrovisionH  of  the  Code  Civ.  Haven,  etc.,  R.  Co.  (42  Static  Rep.,  219), 

Pro.,  a.s   to  plf^ading,   now   apply  to  Board  of  Hcnilth    of  Yonkers  v.  Cojv 

theseactions.    See,  aLso,  section  530  id.  cutt  (71  Hini,  119). 

"By  section   1894,  Code  Civ.  Pro.,  '  S.-o  nob;  2  to  form  No.  122. 

this  a^ition  may  be;  mainlaincd  by  any  *  '^ll(^    section    is    to  be    sju'cificd  if 

person  in  his  own  name;   but  the  ac-  jx-iialties  or  forfeitures    are  given  in 


778  Forms  Relating  to 

chapter of  the  Laws  of  18—  of  the  State  of  New 

York,  entitled  ''An  act,  etc.,"  [giving  title]  passed ,. 

1S_  [o/-  section of  title of  chapter , 

of  part of  the  Revised  Statutes].' 


Article  Fourth. 

forms  relating  to  certain  actions  to  recover  dam- 
AGES FOR  WRONGS. 

(Code  Civ.  Pro.,  Ch.  15,  Tit.  4,  Art.  4.) 

No.  893.  Complaint  for  suing  vexatiously  in  the  name  of  another  or  of  un- 
known person. 

893.  Complaint  in  action  for  causing  death  by  negligence. 

894.  Complaint  for  negligence  causing  death — another  form. 

895.  Answer  to  complaint,  form  No.  894. 

896.  Complaint  in  action  for  injury  caused  by  negligence. 

897.  Complaint  against  carrier  for  negligence  causing  loss  of  box. 

898.  Complaint  for  negligence  in  setting  tire  on  defendant's  land,  so  that 

it  spread  into  plaintiff's  farm  and  destroyed  his  trees,  etc. 

899.  Complaint  for  one  vessel  running  foul  of  another. 

900.  Complaint  against  an  attorney  for  negligently  conducting  a  cause  to 

trial  without  proper  evidence. 

901.  Complaint  against  attorney  for  negligently  defending  an  action. 

902.  Complaint  against  attorney  for  negligence  in  investigating  title  for 

a  purchase  of  property. 

903.  Same,  for  negligence  in  investigating  title  for  the  purpose  of  a  loan 

thereupon. 

904.  Complaint  against  physician  and  surgeon  for  malpractice. 
90o.     Complaint  against  an  inn-keeper  for  negligence. 

906.  Complaint  against  a  bailee  for  negligence. 

907.  Complaint  against  the  o-wmer  of  a  coach  for  negligence  of  himself 

or  of  his  servant  in  driving  the  same  against  the  plaintiff's  coach. 

908.  Complaint  in  action  for  slander  imputing  unchasity  to  a  woman. 

909.  Complaint  in  action  for  slander,  general  form,  for  words  actionable 

in  themselves. 

910.  Statement  of  special  damages  in  complaint  for  slander. 

911.  Complaint  for  slanderous  words  indirectly  accusing  plaintiff  of  a 

specific  offense. 


different  sections  thereof  for  different  304),  Young  v.  Gregg  (9  Civ.  Pro.  R., 

acts  or  omissions.     (Code  Civ.  Pro.,  262),  Prussia  v.  Guenther    (16   Abb. 

§  1897  )  N.  C,  230),  Townsend  v.  Hopkins  (9 

>  See  People  v.   Justices,    etc.     (12  Civ.  Pro.  R.,  257),  Vemon  v.  Palmer 

Hun,  65),  Schoonmaker  v.  Brooks  (24  (48  Super.  Ct.,  231),  Sears  v.  Sears  (9 

Hun,  553),   People  v.  Bull   (42  N.  Y.  Civ.  Pro.  R.,  432),  Spoor  v.  Cornell  (12 

Super.    Ct.,    10),   Mayor  of  N.  Y.  v.  Civ.  Pro.  R.,  319),   People  v.   O'Neill 

Ei'^ler(14Week.Dig.,362);2Civ.  Pro.  (54  Hun,  610),  Rudolph  v.    Rudolph 

Rep.  [Bro^NTie],  125),  Overseers  of  the  (34  State  Rep.,  1),  Delhsser  v.  N.  Y  , 

Poor  V.  McCann  (20  Week.  Dig.,  114),  New  Haven,  etc.,  R- Co.,  (39  id.,  242  , 

Hitchman  v.  Baxter  (20  Week.  Dig.,  Lassen  v.  Aronson  (29  Abb.  N.C.,  114). 


Actions  for  Wrongs.  779 

No.  912.  Complaint  for  slander  where  the  words  are  spoken  ironically. 

913.  Same,  where  it  is  to  be  collected  from  question  and  answer. 

914.  Answer  justifying  a  charge  of  perjury. 

915.  Complaint  for  slandering  a  person  in  his  trade  by  calling  him  a 

rogue,  etc. 

916.  Complaint  in  action  for  slander  of  title. 

917.  Complaint  in  action  for  libel. 

918.  Complaint  for  a  libel  containing  distinct  passages  of  scandalous 

matter. 

919.  Same,  for  a  libel  in  a  letter. 

920.  Complaint  for  criminal  connection  with  plaintiff's  wife. 

921.  Complaint  for  debauching  daughter  or  servant  of  plaintiff. 
923.     Complaint  for  seduction  of  plaintiff 's  daughter. 

923.  Complaint  for  harboring  and  concealing  the  plaintiff's  wife. 

924.  Complaint  for  keeping  dog  used  to  bite  mankind. 

925.  Complaint  for  keeping  a  dog  used  to  bite  sheep  or  other  animals. 

926.  Complaint  for  breach  of  promise  to  marry. 

927.  Complaint  for  false  imprisonment. 

938.  Complaint  for  assault  and  battery. 

939.  Same  complaint,  another  form. 

980.  Answer  that  plaintiff  committed  first  assault. 

931.  Answer  that  defendant  was  preserving  the  peace. 

932.  Complaint  for  maliciously  suing  plaintiff  six  times  before  a  justice. 

933.  Complaint  for  maliciously  causing  the  indictment  of  the  plaintiff. 

934.  Complaint  for  maliciously  causing  the  arrest  of  the  plaintiff  on  a 

charge  of  stealing. 

935.  Complaint  for  a  fraudulent  concealment  in  the  sale  of  a  horse. 

936.  Complaint  for  a  false  warrant}'  of  a  horse. 

987.     Complaint  on  a  sale  with   all   faults,  where  fraudulent  means  are 
used  to  prevent  the  purchaser  from  discovering  defects,  etc. 

938.  Complaint  for  falsely  and  fraudulently  affirming  that  he,  the  de- 

fendant, owned  the  horse. 

939.  Complaint  for  falsely  representing  a  third  person  as  fit  to  be  trusted, 

etc. 

940.  Complaint  in  action  for  false  representations  made  to  induce  a  pur 

chase  of  real  estate. 

941.  Complaint  in  action  where  false  representations  have  been  made  to 

induce  credit. 

942.  Complaint  against  sheriff  for  false  return. 

948.     Complaint  against  sheriff  for  not  making  return, 

944.  Complaint  against  sheriff  for  an  escape. 

945.  Same,  where  arrest  has  been  made  under  order  of  arrest,  and  action 

is  brought  after  judgment. 

946.  Same,  on  an  escape  from  custody  under  order  of  arrest,  when  the 

action  is  brought  before,  judgment. 

947.  Complaint  for  conversion  of  personal  property. 

948.  Same,  in  action  brought  by  executor. 

949.  Complaint  for  arresting  a  witness  while  attending  as  such  upon 

subpa-na. 

950.  Complaint  for  manufacturing  candles  near  a  dwelling-house. 


780  Forms  ReiiAting  to 

No.  892. 

Complaint  for  Suing  Yexatiously  in  the  Name  of  Another 
or  of  Unknown  Person. 

(Code  Civ.  Pro.,  §  1900.) 

[Title  of  cause.] 

The  complaint  of  the  above  named  plaintiff  respectfully 
shows,  that  heretofore  the  defendant,  contriving  wrongfully 
and  maliciously  to  oppress  and  injure  the  plaintiff,  on  or 

about  the day  of ,  18 — ,  did,  for  vexation 

and  trouble,  and  out  of  mere  malice  towards  the  said  plain- 
tiff, cause  and  procure  the  said  plaintiff  to  be  sued  by  a 
certain  summons  [and  complaint],  in  the  name  of  L.  M.; 
and  the  said  plaintiff  avers  that  the  said  suit  was  commenced 
without  the  consent  of  the  said  L.  M.,  therein  named  as 
plaintiff  [or  that  there  is  no  such  j^erson  known  as  L.  M., 
named  as  plaintiff  in  the  said  summons]  ;  and  the  said 
jDlaintiff  further  avers  that,  by  reason  of  such  wrongful  and 
malicious  arrest  as  aforesaid,  he  has  been  obliged  to  expend 
[here  state  the  amount  and  to  what  i)urp)ose  expended,  as 
"  to  defend  said  action,"  or  otherwise,  as  the  case  may  be, 
and  also  state  any  other  damages  sustained,  thus  :  "And 
has  also,  by  reason  thereof,  suffered  great  pains  of  body  and 

mind,  and  for  the  space  of  days  was  prevented 

from  attending  to  his  laAvful  avocation,  etc."],  by  means  of 
w^hich  the  plaintiff  is  entitled  to  recover  treble  damages, 

to  wit :  to  the  amount  of ,  under  the  provisions  of 

section  1900  of  the  Code  of  Civil  Procedure,^  for  which 
amount  the  plaintiff  demands  judgment  against  the  defend- 
ant, with  costs  of  this  action. 

R.  H.,  Plaintiff'* s  Attorney. 
[Office  address.'] 


No.  893. 

Complaint  in  Action  against  Railroad  Company  for  Caus- 
ing Death  by  Negligence. 

(Code  Civ.  Pro.,  §  1902.) 

[Title  of  cause.] 
The  complaint  of  tlie  above  named  plaintiff  respectfully 

>  See  note  2  to  form  No.  122.  506),  and  NolJiB  v.  N.  Y.  C.  R.  R.  Co. 

«  See  People  v.  McCanu  (67  N.  Y.,     (30  N.  Y.,  505),  therein  cited. 


Actions  for  Wrongs.  781 

shows,  that  the  defendant  is  a  domestic  corporation  [or  is 
a  foreign  corporation  incorporated  under  the  laws  of  the 

(State)  of ],  and  was  such  corporation  on  the 

day  of ,  18 — ,  and  for  a  long  time  previous  thereto, 

and  was,  daring  the  time  aforesaid,  the  owner  of  a  railroad, 
and  engaged  as  a  common  carrier  of  passengers  upon  said 

raikoad  for  hire,  between  the  [city]  of  and  the 

of ,  in  the  [State]  of ,  upon  its 

cars,  drawn  by  locomotive  engines.  [*] 

That,  upon  the  day  last  aforesaid,  C.  D.,  the  plaintiffs 
testator  [or  intestate],  entered  one  of  the  cars  of  said  de- 
fendant at ,  with  the  assent  of  the  defendant,  for 

the  purpose  [f]  of  being  conveyed  thereby  from  the  said 

of to  the  said  of [he 

having  paid  to  said  defendant  the  fare  between  the  said 
points,  to  wit, dollars].' 

That  by  the  negligence  of  the  said  defendant,  its  agents 
or  servants,  the  train  of  cars,  in  one  of  which  cars  the  said 
C.  D.  was  riding  as  aforesaid,  was  thrown  from  the  track 
[by  reason  of  the  disjDlacement  of  a  rail  of  the  track  of  said 

railroad,  at  [or  near] ,  and  in  the  State  of  [New  York]," 

and  the  car  in  which  said  C.  D.  was  seated  was  overturned, 
and  C.  D.  was  thrown  from  his  seat  with  great  violence 
[ft]  and  was  killed  [or  sustained  injuries  by  which  his 
death  was  caused],  his  said  death  occurring  on  the  [said] 

day  of ,  18 —  [or  state  other  facts  in  regard 

to  the  accident]. 

*  The  action  for  a  negligent  injury  Co.,  84N.Y.,  48.)  See,  also,  Wooden  v. 

to  a  passenger  lies  against  the  carrier.  Western  N.  Y.  R.  R.  Co.  (126  N.Y.,  10). 

although  there  be  no  contract,  and  the  As  to  manner  of  pleading  a  foreign 

service  he  is  rendering  is  gratuitous,  statute,   see  form  No.   857  (vol.  2,  j). 

(Carroll  v.  Staten  Island  R.  R.  Co.,  58  735),  and  cases  cited  in  note  4  to  that 

N.  Y.,  126  ;  Webber  v.   Herkimer   &  form.     See,  also,  Debevoisc  v.  N.  Y., 

Mohawk  Street  R.  Co.,(21  W.  D.,  47.)  Lake  Erie  &  W.  R.  Co.  (21  W.  D.,  138  ; 

'  An   action   will   lie   in  this   State,  08  N.  Y.,  377). 

under    the  statute  of  another  State,  The    action     may    be     maintained 

eimilar  to  but  not  identical  with  our  against  a  foreign  corj)oration.    (Stallk- 

Btatute,  where  the  injury  was  commit-  necht  v.  Pennsylvania  R.   R.    Co.,  13 

ted  in  that  State.     The  existence  of  Hun,  451.) 

such  a  statute  must  be  alleged  and  An  action  will  lie  under  our  statute 

proved,  and  the  construction  put  uiM)n  wh(;r(i  the  iujui-y  .and  death  occurred 

it  by  the  courts  of  that  State  is  con-  on    the  higli  seas,  on  board  a  vessel 

elusive   here.      The   action   must   be  hailing  from  and  regislered  in  a  port 

brought  by  an  administrator  appointed  of  this  State,    and    enii)loyed  by  the 

here;  and  letters  need  not  \ni  takt^n  owners  in  tluslr  own  l)usine.s.s.     (Mc- 

out  in  the  State  where  the  injui-y  oo  Donald  v.  Malloi-y,  77  N.Y.,  546  ;  rev'g 

curred.    (Leonard  v.  ColumbiaS.  Nav.  S.  C,  44  N.  Y.  Super.  Ct.,  80.) 


782 


Forms  Relating  to 


Plaintiff  further  says,  that  the  said  accident  occurred  and 
said  injuries  were  inHicted  [witliout  any  negligence  or  fault 
on  the  part  of  the  said  C.  D.,  andj  solely  by  the  negligence 
and  fault  of  the  defendant  and  its  agents,  servants  and 
employees.' 

[Allege  intestacy  of  C.  D,,  or  making  of  will,  etc..  by 
him,  and  api)ointment  of  plaintiff"  as  executor  or  adminis- 
trator, etc.,  substantially  as  in  form  No.  845.] 

That  said  C.  D.  left  him  surviving  his  wife,  J.  D.  [and 
M.  D.  and  F.  D.,  his  only  surviving  children  and  next  of 
kin].^ 

Wherefore  the  plaintiff,  as  such  administrator  [or  execu- 
tor], demands  judgment  agains,t  the  defendant  for  the  sum 

of dollars,  besides  the  costs  of  this  action.' 

R.  F.,  Plaintiff' s  Attorney. 
[Office  address.'] 

[Verification  as  in  forms  Nos.  151,  etc.] 


'  The  rule  that  the  iilaintiti  cannot 
recover,  unless  the  death  \vas  caused 
solely  by  the  negligence  of  the  defend- 
ant or  its  servants  to  which  the  negli- 
gence of  the  deceased  in  no  degree 
contributed,  is  the  same  as  in  an  ac- 
tion brought  to  recover  damages  by 
reason  of  a  negligent  injury  to  the 
person  of  the  plaintiff.  (Cordell  v.  N. 
Y.  C.  &  H.  R.  R.  R.  Co.,  75  N.Y.,  330  ; 
H'art  V.  Hudson  River  Bridge  Co.,  84 
id.,  50  ;  Cosgrove  v.  N.  Y.  C.  &  H.  R. 
R.  R.  Co.,  87  id.,  88.) 

That  the  averment  that  the  injury 
occurred  without  the  fault  of  the  dece- 
dent is  unnecessary  and  that  th  e  allega- 
tion that  it  occurred  by  the  negligence 
of  the  plaintiff  covers  the  absence  of 
negligence  on  the  part  of  the  decedent. 
See  Urquhart  v.  The  City  of  Ogdens- 
burg  (23  Hun,  75 ;  20  W.  D.,  413). 

The  rules  as  to  the  right  of  recov- 
ery, where  the  deceased  was,  at  the 
time  of  the  injury,  in  the  employment 
of  the  defendant,  and  received  the  in- 
jury in  the  course  of  his  emplojTnent, 
are  the  same  as  where  a  servant  sues 
his  master  for  a  negligent  injury  to 
the  plaintiff's  person.  (Gibson  v.  Erie 
Railway  Co.,  63  N.  Y.,  449 ;  rev'g  S. 
C,  5  Hun,  31  ;  Malone  v.  Hathaway, 
64  N.  Y.,  5 ;  rev'g  S.  C,  3  Hun,  553  ; 
Slater  v.  Jewett,  85  N.  Y.,  61.) 

'  The  term  next  of  kin,  as  used  in  art. 
4  of  title  4  of  ch.  15  of  Code  Civ.  Pro., 
includes  all  those  entitled,  under  the 
provisions  of  law  relating  to  the  distri- 
bution of  personal  property,  to  share  in 
the  unbequeathed  assets  of  a  decedent. 


after  payment  of  debts  and  expenses, 
other  than  a  surviving  husband  or 
wife.     (Code  Civ.  Pro.,  §§  1870,  1U05.) 

To  entitle  to  a  recovery  under  sec- 
tion 1902,  Code  Civ.  Pro.,  the  decedent 
must  leave  him  or  her  surviving  a  hus- 
band, wife  or  next  of  kin. 

'  See  further  as  to  action  under  sec- 
tion 1902,  Code  Civ.  Pro.,  Cardot  v. 
Barney  (63  N.  Y.,  281),  Cordell  v.  N, 
Y.  C.  &  H.  R.  R.  Co.  (64  N.  Y.,  535  ; 
rev'g  S.  C,  6  Hun,  461),  Sauter  v.  N. 
Y.  C.  &  H.  R.  R.  R.  Co.  (66  N.  Y., 
50  ;  aff 'g  S.  C,  6  Hun,  446;.  Kennedy 
V.  Ryall  (67  N.  Y.,  379  ;  atf'g  S.  C, 
40  N.  Y.  Super.  Ct.,  347),  Quinn  v. 
Power  (87  N.  Y.,  535;  overruling  S. 
C,  17  Hun,  102),  Ellis  v.  N.  Y.,  L.  E. 
and  W.  R.  R.  Co.  (95  N.  Y.,  546),  Sey- 
bolt  V.  Same  (95  N.  Y  ,  562),  Brewer 
V.  N.  Y.  L.  E.  &  W.  R.  Co.  (124  N. 
Y.,  65). 

It  was  held  in  Hegerich  v.  Keddie 
(32  Hun,  141  [Daniels,  J.,  dissenting]), 
that  the  action  may  be  maintained 
against  the  personal  representatives 
of  the  wrong-doer,  following  Yertore 
V.  Wiswall  (16  How.  Pr.,  8).  See 
Russell  V.  Sunbury  (37  Ohio  St.  Rep. ; 
25  Alb.  L.  J.,  308),  to  the  contrary; 
and  see  Hegerich  v.  Keddie  (99  N.  Y., 
258),  reversing  same  case  (32  Hun, 
141),  and  overruling  Yertore  v.  Wis- 
wall (16  How.  Pr.,  8) ;  and  see  Wooden 
V.  Western  N.  Y.  and  P.  R.  Co.  (126 
N.  Y.,  10). 

It  constitutes  a  ilefense  to  such  an 
action  that  the  deceased  in  his  life- 
time brought  an  action  against  the  de- 


AcTiojsfs  FOR  Wrongs. 


783 


No.  894. 

Complaint  Against  Railroad  Company  for  Negligence  Caus- 
ing Death — Another  Form. 

(Code  Civ.  Pro.,  §  1902.) 

[Title  of  cause.] 

Plaintiff  shows  to  the  court,  that  defendant  is  a  raih'oad 
corporation  organized  and  existing  under  and  by  virtue  of 
the  laws  of  the  State  of  New  York,  and  a  common  carrier 
of  [*]  passengers,  and  has  been  so  since  January  1,  1874, 
and  since  that  time  it  has,  as  such  carrier  and  corporation, 
daily  run  its  train  from  the  city  of  S.  to  the  city  of  P.,  in 
said  State. 

That  on  or  about  March  17,  1874,  one  J.  S.,  of  S.,  was 
carried  from  S.  to  P.  in  one  of  defendant' s  passenger  trains, 
as  a  passenger,  having  duly  paid  his  fare  as  such,  according 
to  defendant's  regulations  and  requirements. 

That  upon  the  arrival  of  said  train  at  defendant's  station 


fendant,  for  the  damages  sustained  by 
him  through  the  same  injury,  and  re- 
covered and  collected  a  judgment 
therefor.  (Littlewood  v.  The  Mayor, 
89  N.  Y.,  24 ;  aff'g  S.  C,  47  N.  Y. 
Super.  Ct.,  547,  and  overruling 
Schliehting  v.  Wintgen,  25  Hun,  626.) 
See,  also,  Murray  v.  Usher  (117  N.  Y., 
542,  aff'g  S.  C,  46  Hun,  404) 

See,  also,  Stuebing  v.  Marshall  (14 
Week.  Dig.,  289  [N.  Y.  Com.  PI,] ;  S. 
C,  2  Civ.  Pro.  Rep.  [Bro\vne],  77), 
that  a  release  from  the  person  entitled 
to  receive  the  proceeds,  is  a  bar  to  the 
action  by  the  executor  or  adminis- 
trator. 

As  to  damages  recoverable  and  for 
whose  benefit,  see  Code  Civ.  Pro., 
§§  1903,  1904,  Houghkirk  v.  Pres., 
etc.,  Del.  and  Hud.  C.  Co.  (92  N.  Y., 
219  ;  rav'g  S.  C  ,  28  Hun,  407,  and 
cases  thei-e  cited),  Durkee  v.  Central 
Pacific  R.  R.  Co.  56  Cal.,  388  ;  S.  C, 
38  Am.  R.,  59),  Davis  v.  Stundish  (26 
Hun,  608),  Etherington  v.  The  Pros- 
pect Park  and  Coney  Island  R.  R.  Co. 
(88  N.  Y.,  641),  Sauter  v.  N.  Y.  Cent. 
and  H.  R.  R.  R.  Co.  {.mpi-a),  Kenn(!(ly 
V.  Ryall  {sujtra),  Mcfioveni  v.  N.  Y. 
Cent,  and  11.  R.  R.  R.  Co.  (67  N.  Y., 
417),  Salter  v.  Utica  and  Black  River 
R.  R.  Co.  (86  N.  v.,  401),  Jiierbauer 
v.  N.  Y.  Cent,  and  H.  R.  R.  R.  Co. 
15  Ilun,  I3.'>9;  afiM,  77  N.  Y.,  588, 
Terry  v.  J<-vv(!tt  (17  lliin,  IV.i;")).  (lor- 
ham  V.  N.  Y.  Cent,  and  J I  1{.  II.  R. 
Co.  (2:nrim.  44'.l),  Mariiiiiig   v.    P.    Jl. 


Iron  Co.  (27  Hun,  219),  Cornwall  v. 
Mills  (44  N.  Y.  Super.  Ct.,  45),  Mur- 
phy V.  N.  Y.  Cent,  and  H.  R.  R.  R. 
Co.  (88  N.  Y.,  445),  Lee  v.  Van  Voor- 
his  (78  Hun,  576).  Section  1904  of 
Code  Civ.  Pro.,  x^i'O'^'i'^^^s  that  the 
damages  in  case  of  accident  resulting 
in  death,  shall  be  limited  to  $5,000, 
but  the  constitution  of  N.  Y.  State  of 
1894  repeals  this  limitation  (art.  1, 
§  18).  See,  also,  amendment  to  §  1904 
of  Code  Civ.  Pro.  by  ch.  946  of  Laws 
of  1895,  and  see  Lsola  v.  Weber  (13 
Misc.,  97),  holding  that  said  section  18 
of  article  1  cf  the  Constitution  isretro- 
si^ective  and  comprehends  recoveries 
under  rights  of  action  which  had  ac- 
crued at  the  time  when  the  Constitu- 
tion went  into  effect,  viz.  :  January  1, 
1896  ;  but  see  O'Reilly  v.  Utah,  Nev. 
&  Col.  Stage  Co.  (87  Hun,  406),  contra 
approved  by  Coui-tof  Ai>peals,  147  N. 
Y.,  329,  rev'g  lsola  v.  Weber,  before 
cited ;  and  see  Gui-ney  v.  Grand 
Trunk  R.  Co.  (37  State  Rep.,  557). 
Geoghegan  v.  Atlas  Steamshii)  Co.  (3 
Misc.,  224),  Klcnuii  v.  N.  Y.  C.  &  H. 
R.  R.  Co.  t78  Hun,  287),  Johnson  v. 
Long  Island  R.  Co.  (SO  Hun,  306), 
Kcctian  v.  Brooklyn  City  R.  R.  Co. 
(145  N.  Y.,  34S).  Pitzg.-nild  v.  N.  Y. 
C.  isi  H.  R.  R.  Co.  (HS  Hun.  35'.t).  Cav- 
anagh  v.  Ocean  Steam  Nav.  Co.  (1!> 
Civ.  Pro.  R.,  391).  WiMxleii  v.  W.  N. 
Y.  and  P.  R.  R.  Co.  (147  N.  Y.,  508), 
among  oth«M"  r(!cent  cuaea  vm  to  dam- 
ages, etc;. 


784  Forms  Relating  to 

at  P.  aforesaid,  as  plaintiff  is  informed  and  believes,  and 
while  said  J.  S.,  after  having  been  invited  by  defendant  to 
alight  from  said  train,  as  plaintiff  is  informed  and  be- 
lieves, was  attempting  so  to  do,  defendant  negligently  and 
violently,  as  plaintiff"  is  informed  and  believes,  started  its 
train,  whereby  said  J.  S.  was,  as  plaintiff'  is  informed  and 
believes,  thrown  from  his  footing,  and  so  bruised  and  in- 
jured that  he  shortly  after  died  of  such  injuries  on  the  24th 
of  March,  1874. 

That  it  was  defendant's  duty,  upon  the  arrival  of  such 
train  at  such  station,  to  bring  such  train  to  a  stand,  and 
keep  it  standing  still  so  that  all  its  j)assengers  might  alight 
therefrom  with  safety,  but  that  defendant  neglected  its  duty 
in  that  regard  as  aforesaid,  and  the  death  of  said  J.  S.  was 
caused  by  defendant's  negligence. 

That  on  the  1st  day  of  April,  1874,  plaintiff  was  duly  ap- 
pointed, by  the  county  judge  of  Schenectady  county,  sole 
administrator  of  the  goods,  chattels  and  credits  of  said  J.  S., 
deceased,  and  duly  entered  upon  the  discharge  of  his  duties 
as  such. 

And  plaintiff  has  sustained  damage,  by  reason  of  the 
aforesaid  facts,  in  the  sum  of  $ . 

Wherefore  plaintiff  demands  judgment  for  $ ,  and 

interest  from  March  24,  1874,  besides  costs.' 

E.  W.  P.,  Plaintiff^ s  Attorney. 
[Office  address.'] 

[Verification  as  in  forms  Nos.  151,  etc.] 


No.  895. 
Answer  to  Complaint,  form  No.  894. 

(Code  Civ.  Pro.,  §1902.) 

[Title  of  cause.] 

The  defendant,  in  the  above  entitled  action,  answers  the 
comx)laint  therein,  as  follows  : 

The  defendant  admits  that  it  is  now,  and  since  January  1, 


1  The  above  complaint  is  from  the    R.  R.  Co.  (66  N.  Y.,  50).     See  notes 
case  of  Sauter  v.  N.  Y.  C.  and  H.  R.     to  last  form,  No.  893. 

2  See  note  2  to  form  No.  122 


Actions  for  Wroistos.  785 

1874,  lias  been,  a  railroad  corporation  and  a  common  car- 
rier of  passengers,  and,  as  such,  ran  its  trains  daily  from 
tlie  city  of  S.  to  the  city  of  P.  in  the  State  of  New  York, 
and  that  J.  S.,  deceased,  died  on  or  about  the  24th  day  of 
March,  1874. 

The  defendant  denies  any  knowledge  or  information  suffi- 
cient to  form  a  belief  of  any  or  either  of  the  allegations  in 
said  complaint  contained,  excepting  those  hereinbefore  sjdc- 
cifically  admitted. 

The  defendant  alleges,  npon  information  and  belief,  that 
the  negligence  of  said  J.  S.,  deceased,  contributed  to  cause 
his  death.* 

S.  W.  J.,  Defendant s  Attorney. 
[Office  address.^] 

[Verification  as  in  forms  Nos.  151,  etc.] 


No.  896. 

Complaint  in  Action  Against  Railroad  Company  for  Injury 
Caused  by  Negligence. 

As  in  form  No.  893  to  [*],  and  from  thence  as  follows : 
That  upon  the  day  last  aforesaid,  the  plaintiff  entered  one 

of  the  cars  of  said  defendant,  at ,  with  the  assent 

of  the  defendant,  for  the  purpose,  etc.  [continue  as  in  form 
No.  893  from  (t)  to  (ft),  substituting  "plaintiff"  for  "C.  D." 
therein,  and  continue  as  follows],  and  [his  right  arm  w^as 
fractured  and  broken],  and  the  said  plaintiff  was,  in  other 
respects,  greatly  hurt,  bruised  and  wounded,  and  was  sick, 
sore,  lame  and  disordered,  and  so  remained  and  continued 
for  a  long  space  of  time,  to  wit,  hitherto,  during  all  which 
time  he,  the  said  plaintiff,  suffered  and  underwent  great 
pain,  and  was  hindered  and  i)revented  from  performing  and 
transacting  his  necessary  affairs  and  business  by  him  during 
that  time  to  be  X)erformed  and  transacted  ;  and  also  thereby 
he,  the  said  plaintiff,  was  forced  and  obliged,  and  did  neces- 
sarily pay,  lay  out  and  expend  a  large  sum  of  money,  to  wit : 
the  sum  of dollars,  in  and  about  endeavoring  to  be 

'  From  SiuitcT  v.  X.  Y.  C.  and  II.  R.        »  Sec  note  2  to  form  No.  122. 
R.  R.  Co.  (06  X.  Y.,  50). 
99 


786  Forms  Relating  to 

cured  of  the  bruises,  wounds,  sickness,  soreness  and  lame- 
ness and  disorder  aforesaid. 

Plaimill  furtiier  says,  tliat  the  said  accident  occurred,  and 
;said  injuries  were  intiicted  [without  any  negligence  or  fault 
on  the  part  of  the  pkuntilf,  antlj '  solely  by  the  negligence 
and  fault  of  the  defendant  and  its  agents,  servants  and 
employees. 

Wherefore,  etc.  [insert  prayer  for  judgment].' 

F.  R.,  Flaiutiff's  Attorney. 
[Office  address.'] 


No.  897. 

Complaint  against  Carrier  for  Negligence  Causing  Loss  of 

Box. 

As  in  form  No.  894  to  [*],  and  from  thence  as  follows : 

Ooods  and  chattels  for  hire  from  — to ,  and 

has  been  such  corporation  and  common  carrier  since  the 
day  of ,  18 — . 

That  on  or  about  the day  of ,  18 — ,  and 

while  the  said  defendant  was  such  common  carrier  the 
plaintiff,  at ,  caused  to  be  delivered  to  the  said  de- 
fendant, and  the  said  defendant  then  and  there  accepted 
from  the  plaintiff  a  certain  box,  containing  divers  goods 
and  chattels,  to  wit  [specify  the  articles],  of  the  said  plain- 
tiff of  great  value,  to  wit :  of  the  value  of dollars, 

to  be  safely  and  securely  carried  and  conveyed  by  the  said 

defendant  from aforesaid  to aforesaid, 

and  there,  to  wit:  at,  etc.,  aforesaid,  safely  and  securely  to 
be  delivered  for  the  said  plaintiff,  for  certain  reasonable 
reward,  to  the  said  defendant,  in  that  behalf. 

That  the  said  defendant,  not  regarding  its  duty  as  such 
common  carrier  as  aforesaid,  did  not  safely  and  securely 
carry  or  convey  the  said  box  and  its  contents  aforesaid  from 

aforesaid  to aforesaid,  nor  there,  to  wit : 

at aforesaid,  safely  and  securely  deliver  the  same 


'See  note  3  to  form  No.  893.  (21   W.  D.,   88) ;    Edwards   v.   N.  Y., 

^See  the  cases   cited   in   note   3   to  etc,  R.  Co.  (id.,  231). 

form  No.  893,  generally  as  to  actions  ^See  note  2  to  form  No.  122. 

for   neglig'ence ;   also,   Nolan  v.  King 


Actions  foii  Wkoisgs.  787 

for  him,  the  said  j)laintiff,  but,  on  tlie  contrary  thereof,  the 
said  defendant,  its  agents  and  servants,  so  carelessly  and 
negligently  behaved  and  conducted  themselves,  in  the 
premises,  that  by  and  through  the  carelessness,  negligence 
and  default  of  the  said  defendant,  its  agents  and  servants, 
in  the  premises,  the  said  box  and  its  contents  aforesaid  be- 
came and  were  wholly  lost  to  the  said  plaintiflf. 

Wherefore  the  plaintiff,  etc.  [prayer  for  judgment].' 

M.  F.,  Plaint f'^'s  Attorney. 
[Office  address.'] 

[Verification  as  in  forms  Nos.  151,  etc.] 


No.  898. 

Complaint  for  Negligence  iu  Setting  Fire  on  Defendant's 
Land,  so  that  it  Spread  into  Plaintiif's  Farm  and  De- 
stroyed his  Trees,  etc. 

[Title  of  cause.] 

The  plaintiff  complains  of  the  defendant  and  alleges,  that 

on  the day  of ,  18 — ,  the  said  plaintiff  was 

seized  in  fee,  and  in  j^ossession  of  [or  set  forth  what  other 
estate  he  held  or  possessed],  a  certain  farm,  etc.,  situated 
in  the  town  of ,  in  the  county  of ,  con- 
taining   acres  of  land,  and  bounded  and  described 

as  follows,  to  wit  [describe  same]. 

That  the  defendant  was  at  the  same  time  and  place  last 
mentioned  also  possessed  [and  seized  in  fee] '  of  a  certain 
other  farm,  piece  or  parcel  of  land  next  to  and  adjoining 
[or  near  to]  the  said  farm  or  piece  or  parcel  of  land  of  the 
said  plaintiff,  yet  the  said  defendant  well  knowing  the 
premises,  and  not  regarding  the  safety  and  preservation  of 

the  property  of  the  said  plaintiff,  did,  to  wit :  on  the 

day  of ,  18—,  set  fivp  to  tlip  wood,  trees  or  timber 

then  and  there  standing  and  n-rowiniz;  on  the  said  land  so 


ercise 


'A  common  carrier  is  bound  to  ex-  Nav.  Co.  (125  N.  Y.,  155  ;  rev'g  S.  C 

cise  reasonalile  can;  and  jii-ndcjnce  5J  Hun,  75),  Keuncy  v.  N.  Y.  Central, 

in  the  transportation  of  property,  and  etc.,  R.  Co.   (id.,  422;  iiiY'p;  S.  C,  54 

is  liable  for  losH  resiiltinfc  fi-oin  a  fail-  Ilun,  14:5),   Ziiiinicr  v.  N.  Y.  C.'utral. 

"••e    in    this   i-esjiect,  althou^rh  ])y  his  etc.,  R  ('o.  (137  id.,  4(;());  Wciubcrf,' v. 

ntract   lh(!  transportation  is  "at  th(!  Nat.  Stcanishii)  Cd.  (29  State  R.,  2i;t). 

.-nej-'s  risk."     (CanficM  \-   ]5jiltinior<!         ''S( (il(> 'J  to  fdi'in  Nn.  IL'2. 


ure 
con 

owi  ^  . 

and  Ohio  R.   R.'Co.,    (t;j   N.  V.,  5:52. )         Mt  is  not  n.-eessary  to  set  forth  the 
See   also    Wheeler  v.  Oceaiiie   Stc;nii     title  of  dclVndant. 


788  Forms  E-elattng  to 

possessed  [and  owned]  by  him,  the  said  defendant  as  afore- 
said, and  did  then  and  there  so  carelessly,  negligently  and 
improvidently  manage,  direct  and  conduct  the  said  lire,  that 
by  and  through  the  mere  carelessness,  negligence  and  mis- 
management of  the  said  defendant,  his  servants  and  agents 
in  and  about  the  said  lire,  and  the  sj)reading  thereof  to  the 
farm,  etc.,  of  the  said  plaintitf,  one  thousand  pine  trees,  one 
thousand  oak  trees,  one  thousand  chestnut  trees,  twelve 
hundred  yards  of  fence,  one  barn,  one  stable,  and  one  dwel- 
ling-house of  him  the  said  plaintiff,  then  and  there  standing 
and  being  on  the  said  farm,  inece  or  parcel  of  land  of  him 
the  said  j)l^intiff,  and  being  of  great  value,  to  wit :  of  the 

value  of dollars,  then  and  there  caught  fire  from 

the  spreading  of  the  lire  aforesaid,  so  set  as  aforesaid,  by 
the  said  defendant,  and  which  spreading  as  aforesaid  might 
and  would  have  been  then  and  there  i3revented,  had  the  said 
defendant  then  and  there  used  due  skill,  care  and  attention 
to  prevent  the  same,  by  means  of  which  said  want  of  care, 
circumspection  and  skill  as  aforesaid  of  the  said  defendant* 
the  said  one  thousand  pine  trees,  etc.  [stating  the  rest],  of  the 
said  plaintiff,  were  then  and  there  entirely  burnt,  consumed, 
destroyed  and  lost  to  the  said  plaintiff,  by  the  spreading  of 

the  fire  as  aforesaid,   to  his  damage dollars,  for 

which,  etc.  [prayer  for  judgment].'' 

M.  F.,  Attorney  for  Plaintiff. 
[Office  address.'] 
[Verification  as  in  forms  Nos.  151,  etc.] 


No.  899. 
Complaint  for  One  Yessel  Running  Foul  of  Another, 

[Title  of  cause.] 
The  plaintiff  complains  of  the  defendant,  and  alleges, 

*  See  Clark  v.  Foot  (8  Johns.  Rep.,  Co.   (28  Hun,  363),  Reiper  v.  Nichola 

421,  422),  Stuart  v.  Hawley  (22  Barb.,  (31  id.,  491),  Ryan  v.  N.  Y.  C.  R.  R. 

619),   Calkins  v.  Barger  (44  id.,  424),  Co.  (35  N.  T.,  210  ;  aff 'd  S.  C,  4  Wall. 

Hays' Administrator  V.  Miller  (6  Hun,  [U.S.],    244),    Hinchey  v.  Manhattan 

320),  Webb  v.  The  Rome,  Watertown  R.  Co.  (18  Week.  Dig.,  273),  Heeg  v. 

and  Ogdensburg  R.  R.  Co.  (49  N.  Y.,  Licht  (80  N.    Y.,    579  ;    rev'g   S.    C, 

420),  Losee  v.  Buchanan  (51  id.,  476),  16  Hun,    257)  ;  Ferguson  v.  Hubbell 

Hogle  V.  N.  Y.  C.  and  H.  R.  R.  R.  (97   N.    Y.,    507),     O'NeiU  v.  N.  Y.» 


Forms  Relating  to 


788a 


Ontario,  etc.,  R.  Co.  (115  id.,  579), 
Van  Fleet  v.  N.  Y.  Central,  etc., 
R.  Co.  (27  State  Rep.,  76),  Eig-hme  v. 
Rome,  Waterto^vn,  etc.,  R.  Co.  (32  id., 
757),  Cosulich  v.  Standard  Oil  Co.  (122 
N.  Y.,  118),  To'ivnley  v.  Fall  Brook 
Coal  Co.  (35  State  Rep.,  975),  Collins 
V.  N.  Y.  Central,  etc.,  R.  Co.  (33  id., 
569),  Bmmmit  v.  Furness  (27  N.  E. 
Rep.,  656),  Van  Nostrand  v.  Walkill 
R.  Co.  (46  State  Rep.,  456),  Loeber  v. 
Roberts  (42  id.,  687),  Sugarman  v. 
Manhattan  Elevated  R.  Co.  (42  id., 
30),  Martin  v.  N.  Y.,  Ontario  and 
Western  R.  Co.  (62  Hun,  181),  Babcock 


V.  FitchburgR.  Co.  (46  State  Rep.,  796; 
67  Hun,  469  ;  140  N.Y.,  308) ;  L.  1892, 
ch.  692  ,  HaskeU  v.  Northern  Adiron- 
dack Co.  (49  State  Rep.,  483),  Genung 
V.  N.  Y.  and  N.  E.  R.  Co.  (50  id., 
511),  Wheeler  v.  N.Y.  Central,  etc.,  R. 
Co.  (67  Hun,  639),  Frace  v.  N.  Y.,  Lake 
Erie,  etc.,  R.  Co.  (68  id.,  325  ;  143  N. 
Y.,  182) ;  Flinn  v.  N.  Y.  Central,  etc., 
R.  Co.  (142  N.  Y.,  11),  Phoenix  Ins.  Co. 
V.  N.  Y.  Central,  etc.,  R.  Co.  (75  Hun, 
216),  Piper  v.  N.  Y.  Central,  etc.,  R. 
Co.  (76  id.,  44),  Frier  v.  D.  and  H. 
Canal  Co.  (86  Hun,  464). 
3  See  note  2  to  form  No.  122. 


Actions  fok  Wrongs.  789 

tliat  heretofore,  and  on  the day  of ,  18 , 

the  said  plaintiff  was  possessed,  as  of  his  own  goods  and 
chattels,  of  a  certain  sloop  [or  schooner,  or  ship,  etc.],  called 
the  Eagle,  together  with  her  tackle,  apparel,  furniture,  boats, 
etc.,  of  a  great  value,  to  wit :  of  the  value  of dol- 
lars, and  she  then  having  also  on  board  divers  goods  and 

chattels  [of  a  large  value,  to  wit :   of  the  value  of  — 

dollars]  for  freight,  to  be  conveyed  and  navigated  from,  etc., 
to,  etc.,  on  the  [Hudson  river],  and  which  said  last  men- 
tioned goods  and  chattels  belonged  to  divers  other  persons, 
to  wit  [name  them],  and  were  so  put  on  board  and  in- 
trusted by  the  said  owners  thereof  to  be  so  conveyed  by 
the  said  plaintiff  as  a  common  carrier. 

That  the  said  defendants  were  then  possessed  of  another 
vessel  [or  steamboat,  or  sloop,  etc.],  called  the  Novelty,  and 
which  said  vessel  also  navigated  the  said  river,  and  was  then 
proceeding  on  the  said  river  in  a  southerly  direction,  while 
the  said  vessel  of  the  said  plaintiff  was  then  proceeding 
thereon  in  a  northerly  direction. 

That  the  said  defendant,  well-knowing  the  i)remises, 
to  wit:  on,  etc.,  at,  etc.,  so  negligently,  carelessly  and  un- 
skillfully  did,  by  himself  and  his  servants,  manage,  con- 
duct and  navigate  the  said  vessel  of  the  said  defendant, 
that  by  and  through  the  mere  negligence,  mismanagement 
and  carelessness  of  the  said  defendant  and  his  servants,  the 
said  vessel  of  the  said  defendant  did  forcibly,  and  with 
great  violence,  then  and  there  run  foul  and  against  the  said 
vessel  of  the  said  plaintiff,  and  then  and  there  [state  the 
injury  done,  with  the  particular  loss  and  damage  to  the 
vessel  and  cargo,  etc.],  to  the  damage  of  the  plaintiff  of 
dollars,  for  which  amount,  etc.,  prayer  for  judg- 
ment.* 

M.  F.,  Plaintiff^  s  Attorney. 

[Office  address."] 
[Verilication  as  in  forms  Nos.  151,  etc.] 

'  See  Hawkins  v.  Dutchess  and  Or-  Ferry  Co.  of  Brooklyn  (47  N.  Y.,  176; 

ange  Steamboat  Co.  (2  Wend.,  452),  S.  C,  68N.Y.,385),  ParroUv.  Knickt-r- 

Snell  V    Rich  (1  Johns.  Rep.,  305),  booker  and  N.  Y.  Ice  Co.  (40  N.  Y., 

Deni.son  v.    Seymour  (9  Wend.,  9),  361;  rcv'g  S.  C,  2  Sweeny,  93).  Aus- 

Blanchard  v.  New  Jersey  Steamboat  tin  v.  New  Jcsrsey  StcamJjoat  Co.  (43 

Co.  (59  N   Y.,292).  Hoffman  v.  Union  N.  Y.,  75),  Mailler  v.  Express  Propel- 


790  Forms  Relating  to 

No.  900. 

Complaint  against  an  Attorney  for  Negligently  Conducting^ 
a  Cause  to  Trial,  without  Proper  Evidence. 

[Title  of  cause.] 

The  plaintiff  complains  of  defendant  and  alleges,  that 
before  and  at  the  time  of  the  committing  of  the  grievances 
by  the  said  defendant  as  hereinafter  mentioned,  the  said 
lilaintiff,  at  the  special  instance  and  request  of  the  said  de- 
fendant, had  retained  and  emj^loyed  the  said  defendant, 
as  an  attorney  of  the  Supreme  Court  of  the  State  of  New 
York,  to  prosecute  and  conduct  a  certain  action  [for  the 
conversion  of  ]3ersonal  property]  in  the  same  court,  by  and 
at  the  suit  of  the  said  plaintiff,  against  one  E.  F.,  for  [taking 
away  and  converting  to  his  use  certain  goods  and  chattels, 
claimed  by  him,  the  said  plaintiff,  to  be  his  own  proper 
goods  and  chattels],  for  certain  reasonable  fees  and  reward, 
to  be  therefor  paid  by  the  said  plaintiff  to  the  said  defend- 
ant ;  and  the  said  defendant  then  and  there  accepted  and 
entered  upon  such  retainer  and  employment,  to  wit:  at 

[and  thereupon  it  then  and  there  became  and  was 

the  duty  of  the  said  defendant  to  prosecute  and  conduct 
the  said  action  in  a  proper,  skillful  and  diligent  manner]. 

That  the  said  defendant  not  regarding  such  his  duty  or 
his  retainer  and  employment,  but  contriving  and  intending 
to  injure  and  aggrieve  the  said  plaintiff,  in  this  behalf,  did 
not  nor  would  prosecute  or  conduct  the  said  action  in  a 
proper,  skillful  or  diligent  manner,  and,  on  the  contrary 
thereof,  prosecuted  and  conducted  the  same  action  to  trial 
in  so  improper,  unskillful  and  negligent  a  manner  [in  not 
having  a  certain  instrument  before  then  prepared  by  the 
said  defendant,  and  purporting  to  be  a  sale  and  assignment 
of  the  said  goods  and  chattels  by  the  said  E.  F.  to  the  said 
plaintiff,  so  that  the  same  might  have  been  given  in  evidence 
on  the  said  trial  of  said  action],  that  the  said  plaintiff  by 
the  nesilect  and  default  of  the  said  defendant  in  that  behalf 


lei-   line   (01   N.  Y.,    312),  Cooper  v.  135),  Fitzsimmons  v.    McConnell  (27 

Eastern  Transportation  Co.  (75  N.  Y.,  State   Rep.    590),  Case   v.  Perew  (46 

116),  Silliman  v.  Lewis  (49  N.  Y.,  379),  Hun,  57),  Bedell  v.  Kirk  (44  State  Rep., 

Perry  v.  Lansing-  (17  Hun,  34),  Lam-  483),  Feeney  v.  Mmmsceongro  Towing- 

bert  V.  Staten  Island  R.  R.  Co.  (70  N.  Co.  (50  State  Rep.,  252),  New  York 

Y    104)    Erwin  v.  Neversink  Steam-  Harbor  Towboat   Co.  v.  N.  Y.,  Lake 

boat    Co     (88    N.    Y.,  184);     Chase  Erie  &  W.  R.  Co.  (76  Hnn,  258).  Young 

V.   Belden   (21    W.    D.,  99),  Jung  v.  v.  Staten  Island  R.  T.  R.  Co.  (8  Misc., 

Starin    (12  Misc.,    362),    Flannery   v.  460).  ^    „^    ^         tvt     -.oo 

Cornell    Steamboat     Co.     (89     Hun,         » See  note  2  to  form  No.l22. 


Actions  for  Weongs.  791 

was  [hindered  and  prevented  from  giving  the  same  instru- 
ment in  evidence  upon  the  trial  of  the  said  action],  and  by 
reason  thereof  was  afterwards,  to  wit :  on,  etc.  [day  of  non- 
suit, or  about  it],  at,  etc.,  compelled  to  suffer  himself,  the 
said  plaintiff,  to  be  nonsuited  in  the  said  action,  whereby 
he,  the  said  plaintiff,  was  not  only  hindered  and  prevented 
from  recovering  his  said  damages  from  the  said  E.  F.  by 
reason  of  [his  taking  away  and  converting  the  said  goods 
and  chattels],  as  aforesaid,  but  hath  also  been  forced  and 
obliged  to  'pny  and  hath  i)aid  to  the  said  E.  F.  a  large  sum 

of  money,  to  wit :  the  sum  of dollars  for  his  costs 

and  charges  in  and  about  the  defense  of  the  said  action,  and 
hath  also  paid  to  the  said  defendant  another  large  sum  of 

money,  to  wit :    the  sum  of dollai's  for  his  costs 

and  charges  for  the  prosecution  and  conduct  of  the  said 
action. 

Wherefore,  etc.  [i^rayer  for  judgment].' 

M.  F.,  Plaintiff's  Attorney. 
[Office  address.^] 

[Verification  as  in  forms  Nos.  151,  etc.] 


No.  901. 

Complaint  against  Attorney  for  Negligently  Defending  an 

Action. 

[Title  of  cause.] 

The  plaintiff  complains  of  the  defendant  and  alleges, 
that  at  tlie  time  of  the  making  of  the  promise  and  under- 
taking of  said  defendant,  hereinafter  mentioned,  a  certain 
action  had  been  commenced  and  prosecuted  and  was  then 
dex)ending,  by  and  at  the  suit  of  one  J.  K.  against  the  said 

plaintiff,  in  the  [Supreme  Court]  for  [the  recovery  of 

dollars,  claimed  to  be  due  and  owing  to  said  J.  K.  from  said 

'As  to  the  rules  governing- this  class  Lewis  2  F.  &  F.,  407),  Looff  v.  Law- 

of  actions,  see  Von  Wallhofen  v.  New-  ton   (20   "Week.    Dig.,   30tt  ;  97  N.  Y., 

combe  (10  Hun,  23t;,  and  cases  Ww.ra  478).  Stout  v.  Smitli  (;U  A.  L.  J.,  411  ; 

cited),  Purves  V.  Landell  (12  C.  ii,  V.,  98  N.  Y.,  25),   Cas(i  v.    llotchkiss    (:{ 

91),  Hart  v.  Frame  ((J  C.  &  F.,  19:5 ;  ?,  Koycs,  8:54),   Bowman  v.  Tallman  (40 

Jur.,  547),  Hill  v.  Fiiuiey  (4  F.  k  F.,  How.  Pr.,  1 ;  afl'g  S.  C,  2  Rob.,  :5Sr)), 

CIO),  Kemp  V.  Burt  (1  N.  &  M.,  2(52;  Cole  v.    Roby  (33   State   Rep.,    7:{-l). 

4  Bam.    &  Ad.,  424),  Mercer  v.  King  (Ji-innell  v.   Sherm;in  (:iS  State  Rej)., 

(1  F.  &  F.,  490),  Rr-<T.;  V.  Rigby  (4  B.  .'■)S7),    Barney  v.    Fuller  (:{9  id.,  920), 

&  A.,  202),  Swannell  v.  Kllis  (S  Mdorc,  Malin-  v.  Ilymdii  (■»:{  id.,  540),  Carter 

340  ;  1  Bing.,  :{47),  (JodelVoy  v.  Jay  (7  v.  Tallcut  (30  Hun,  393). 
Bing.,  413;  5  M.  &  P.,  284),  Hatch  v. 


792  Forms  Relating  to 

plaintiff],  and  thereupon  he  employed  and  retained  the  said 
defendant,  he  being  then  an  attorney  of  the  said  court,  as 
such  attorney  to  defend  the  said  action  for  the  said  plain- 
tiff, and  in  consideration  of  such  employment  the  said  de- 
fendant undertook  and  then  and  there  faithfully  promised 
the  said  plaintiff'  to  defend  the  said  action  for  him,  the  said 
plaintiff,  in  a  proper  and  careful  manner  ;  and,  although 
such  proceedings  were  thereupon  had  in  the  said  action, 

that  afterwards,  to  wit :  on  the  day  of , 

18 — ,  it  became  and  was  the  duty  of  the  said  defendant, 
under  and  by  virtue  of  his  said  retainer  and  his  said  promise 
and  undertaking,  to  file  or  deliver  a  proper  and  sufficient 
answer  to  the  complaint  therein,  nevertheless  the  said  de- 
fendant, not  regarding  his  said  promise  and  undertaking, 
but  contriving,  etc.,  to  injure  the  said  plaintiff  in  this  be- 
half, did  not  nor  would,  when  it  was  his  duty  so  to  do  as 
aforesaid,  file  or  deliver  a  proper  or  sufficient  answer  to  the 
said  complaint,  but,  on  the  contrary  thereof,  wholly  omit- 
ted and  neglected  so  to  do,  and  by  reason  thereof,  and  by 
and  through  the  default  and  neglect  of  the  said  defendant 

in  that  behalf,  afterwards,  to  wit :   on  the day  of 

,  18 — ,  judgment  by  default  Avas  obtained  in  the 

said  action  against  him,  the  said  plaintiff,  by  which  it  was 
adjudged,  in  and  by  the  said  court,  in  the  said  action,  that 
the  said  J.  K.  should  recover  against  the  said  plaintiff  a 

large  sum  of  money,  to  wit :  the  sum  of — —  dollars  ; 

and  the  said  plaintiff  was  afterwards,  to  wit :  on  the 

day  of ,  18 — ,  forced  and  obliged  to  pay,  and  did 

pay  to  the  said  J.  K.,  the  said  sum  of  money  so  recovered 
by  him  as  aforesaid,  and  also  by  means  of  the  premises,  he, 
the  said  plaintiff,  was  put  to  divers  costs  and  charges  in  and 
about  his  endeavoring  to  defend  the  said  action,  amounting 
in  the  whole  to  a  large  sum  of  money,  to  wit : dol- 
lars, and  hath  lost  and  been  deprived  of  the  means  of  re- 
covering the  same  from  the  said  J.  K. 

Wherefore,  etc.  [prayer  for  judgment].' 

M.  F.,  Plaintiff^ s  Attorney. 
[Office  address.'] 

[Verification  as  in  forms  Nos.  151,  etc.] 

•  See  note  1  to  form  No.  900.  "  See  note  2  to  form  No.  122. 


Actions  for  Wrongs.  793 

No.  902. 

Complaint  Against  an  Attorney  for  Negligence  in  Investi- 
gating Title  for  a  Purchase  of  Property, 

[Title  of  cause.] 

The  plaintiff  complains  of  the  defendant,  and  alleges, 
that  on  the day  of ,  18 — ,  the  said  plain- 
tiff had  contracted  and  agreed  with  certain  j)ersons,  to  wit : 
E.  F.  and  G.  H.,  for  the  purchase  from  them  of  certain 
lands  and  tenements,  with  the  appurtenances,   situate  in 

the  county  of ,  in  fee  simple,  at  and  for  a  large 

sum  of  money,  to  wit : dollars,  to  be  paid  for  the 

same,  which  said  lands  and  tenements,  with  the  appurten- 
ances, the  said  E.  F.  and  G.  H.  then  assumed  to  have  suffi- 
cient power  to  sell  and  convey  to  the  said  plaintiff  in  fee 
simple  ;  and  thereupon,  heretofore,  to  wit :  on  the  day  and 
year  aforesaid,  the  said  plaintiff  [at  the  s^Decial  instance 
and  request  of  the  said  defendant],  retained  and  employed 
the  said  defendant  as  an  attorney,  to  ascertain  the  title  of 
the  said  E.  F.  and  G.  H.  to  the  said  lands  and  tenements, 
with  tlie  appurtenances,  and  to  cause  and  procure  an  estate 
and  interest  therein,  in  fee  simple,  to  be  duly  conveyed  by 
the  said  E.  F.  and  G.  H.  to  the  said  plaintiff,  for  reasonable 
fees,  and  reward  to  the  said  defendant  in  that  behalf,  in  a 
reasonable  time  then  next  following,  and  the  said  defendant 
then  accepted  and  entered  uj)on  such  retainer  and  employ- 
ment. 

That  although  a  reasonable  time  for  the  said  defendant's 
causing  and  procuring  a  good  and  sufficient  title  as  afore- 
said hath  long  since  elapsed,  yet  the  said  defendant,  not 
regarding  his  duty  or  his  said  retainer  and  employment, 
but  contriving  and  intending  to  injure,  aggrieve,  Jiarrass 
and  oppress  the  said  plaintiff  in  this  behalf,  did  not,  nor 
would  use  due  endeavors  to  cause  or  procure  a  good  and 
sufficient  title  to  the  fee  simi)le  of  and  in  the  said  lands, 
tenements  and  premises,  with  the  appurtenances,  to  be  con- 
veyed to  the  said  plaintiff  within  snch  reasonable  time  !:s 
aforesaid,  or  at  any  time  since,  but  hath  hitlierto  wholly 
neglected  and  refused  so  to  do  ;  and  afterwards,  to  wit,  on 

the day  of ,  18—,  wrongfully  and  injuri- 

100 


794  Forms  Relating  to 

ously  caused  and  procured  the  said  plaintiff  to  pay  to  the 
said  E.  F.  and  G.  11.  a  large  sum  of  money,  to  wit,  the  sum 

of ,  as  and  for  the  purchase  money  of  the  said 

lands,  tenements  and  premises,  with  the  appurtenances, 
without  having  a  good  and  sufficient  title  to  the  fee  simple 
of  and  in  the  same,  conveyed  to  the  said  plaintiff,  and  by 
reason  of  the  neglect  and  improper  conduct  of  the  said  de- 
fendant in  that  behalf,  the  said  plaintiff  hath  not  obtained 
a  o-ood  or  sufficient  title  to  the  said  tenements  and  premises 
with  the  appurtenances  in  fee  simple,  and  thereby  hath 
been  hindered  and  prevented  from  selling  and  disposing 
thereof ;  and  the  said  lands  tenements  and  premises,  with 
the  appurtenances,  have  become  and  are  of  little  use  or 
value  to  the  said  plaintiff,  to  the  damage  of  the  said  plain- 
tiff yf dollars,  for  which  amount,  etc.  [prayer  for 

judgment].' 

M.  F.,  Plaintiff's  Attorney. 

[Office  address."] 

[Verification  as  in  forms  Nos.  151,  etc.] 


No.  903. 

Complaint  Against  Attorney  for  Negligence  in  Investigat- 
ing Title  for  the  Purpose  of  a  Loan  Thereupon. 

[Title  of  cause.] 

The  plaintiff  complains  of  the  defendant,  and  alleges, 

that  heretofore,  and  on  or  about  the day  of , 

18 — ,  one  H.  C.  was  desirous  of  obtaining  from  the  said 

plaintiff  a  loan  of  dollars,  upon  interest,  at  and 

after  the  rate  of  six  per  cent  per  annum,  and  as  a  security 
for  the  repayment  thereof,  and  interest  thereupon  as  afore- 
said, to  the  said  plaintiff,  proposed  to  encumber  certain 
lands,  tenements  and  i:)remises  situated  in  the  county  of 


That  the  plaintiff  thereupon,  to  wit,  on  the  day  and  year 
aforesaid,  employed  and  retained  the  said  defendant  as  an  at- 
torney for  fees  and  reward  to  him  in  that  behalf,  to  ascertain 

•  See  not-  1  to  form  Xo.  900,  and        «  See  note  3  to  form  No.  123. 
see  Elder  v.  Bogardus,  Ilill  &  D.  Supp. ,  , 

116. 


Actions  for  Wrongs.  795 

the  title  of  the  said  H.  C.  to  the  said  lands  and  premises,  and 
to  take  due  and  proper  care  that  the  same  should  be  a  suffi- 
cient security  for  the  repayment  of  the  said  sum  of  money 
•and  interest,  and  the  said  defendant  accex)ted  and  entered 
upon  such  retainer  and  emx)loymeiit. 

That  the  said  defendant,  not  regarding  his  duty  or  his 
said  retainer  and  employment,  but  contriving  and  intending 
to  injure  and  aggrieve  the  plaintiif  in  this  behalf,  did  not, 
nor  would,  take  due  and  proper  care  to  ascertain  the  title  of 
the  said  H.  C.  to  the  said  lands,  tenements  and  premises, 
nor  take  due  and  proper  care  that  the  same  should  be  a 
sufficient  security  for  the  repayment  of  the  said  sum  and 
interest. 

And  the  said  plaintiff  further  saith,  that  he,  coniiding  in 
the  said  performance  of  the  said  duty  of  the  said  defend- 
ant, afterwards,  to  wit,  on  the day  of , 

18 — ,  did  lend  and  advance  to  the  said  H.  C.  the  said  sum 
of dollars,  upon  the  security  of  certain  lands,  tene- 
ments and  premises  in  the  county  of aforesaid,  as 

and  for  a  sufficient  security  in  that  behalf ;  and  the  said 
defendant,  in  pursuance  of  his  said  retainer,  caused  to  be 
prepared  and  executed  a  certain  indenture  and  certain  secu- 
rities relating  to  the  said  supposed  estate  and  interest  of 
the  said  H.  C.  in  the  said  last  mentioned  lands,  tenements 
and  premises,  as  and  for  such  sufficient  security  for  the  re- 
payment of  the  said  sum  of dollars,  and  interest 

as  aforesaid,  the  same  being  tlien  and  there,  by  reason  of 
the  said  defendant's  negligence,  carelessness,  unskillfulness 
and  improper  conduct  in  the  premises,  a  bad  and  insuffi- 
cient security  for  the  repayment  of  the  said  sum  of 

dollars  and  interest  as  aforesaid,  to  the  damage  of  the  phiin- 
tiff  of dollars,  for  wliich,  etc.  [prayer  for  judg- 
ment].' 

M.  F.,  PlainiifF'  s  Attorney 
[Office  address.''] 

[Verification  as  in  forms  Nos.  151,  etc.] 


•  See  note  1  to  form  No.  900,  and        '  See  note  2  to  form  No.  122. 
note  1  to  form  No.  902. 


796  Forms  Relating  to 

No.  904. 
Complaint  against  Physician  and  Surgeon  for  Malpractice. 

[Title  of  cause.] 

The  plaintiff  in  this  action  complains  of  the  defendant 

herein,  and  alleges,  that  at  D ,  in  the  county  of 

,  and  State  of  New  York,  on  or  about  the 

day  of ,  she,  the  said  plaintiff',  accidentally  fell  from 

a  horse  and  broke  or  dislocated  her  left  arm  at  the  elbow- 
joint  by  means  of  such  fall,  and  that  on  that  day,  and  im- 
mediately after  receiving  said  injury,  she  employed  the 
defendant  for  a  reasonable  compensation,  to  be  paid  by  her 
to  him,  to  set  and  reduce  the  said  fracture  or  dislocation  of 
said  arm,  and  to  attend  to  the  same,  and  to  use  his  care, 
skill  and  diligence  in  regard  thereto,  until  the  said  arm 
should  be  restored  and  cured  of  its  injury. 

That  at  the  time  of  such  emj)loyment  of  the  defendant 
by  her,  the  plaintiff,  the  defendant  was  a  practicing  physi- 
cian and  surgeon,  and  held  himself  out  as,  and  rei^resented 
himself  to  be,  to  her  and  to  the  public,  a  scientific,  skillful 
and  competent  physician  and  surgeon,  and  as  fully  quali- 
fied for  the  practice  of  both  medicine  and  surgery,  and  that 
he,  the  defendant,  thus  employed  by  the  plaintiff",  iinder- 
took  to  treat  and  care  for  the  plaintiff'  and  her  said  arm, 
carefully  and  skillfully  ;  but,  neverthless,  the  defendant, 
disregarding  and  neglecting  his  duty  in  that  regaid,  did 
negligently,  carelessly,  unskillfully  and  ignorantly  set  and 
treat  said  arm  of  said  plaintiff,  and  negligently  and  unskill- 
fully failed  to  properly  reduce,  set  or  treat  said  fracture  or 
dislocation  of  said  arm,  and  carelessly  and  unskillfully 
neglected  to  properly  support  the  said  arm  with  bandages 
and  splints,  and  carelessly  and  unskillfully  left  the  said  arm 
without  having  applied  bandages  or  splints  thereto,  and  so 
negligently,  carelessly  and  unskillfully  treated  said  arm 
that,  by  reason  of  said  carelessness  and  unskillfullness,  the 
said  arm  became  greatly  swollen  and  inflamed,  and  she  was 
put  to  great  pain  and  suffering  in  consequence  thereof, 
and  her  general  health  was,  and  still  remains,  thereby  im- 
paired greatly,  and  said  arm  was,  by  said  careless,  negli- 
gent and  unskillful  treatment  thereof,  and  by  the  defend- 


Actions  for  Wrongs.  797 

ant's  neglect  thereof,  rendered,  and  still  remains,  stiff  and 
deformed  and  almost  totally  useless,  and  she,  the  said  plain- 
tiff, was  thereby  compelled  to  undergo  and  submit  to  and  was 
subjected  to  the  expense  and  pain  of  a  severe  surgical  oper- 
ation to  partially  remedy  the  said  results  of  said  careless, 
negligent  and  unskillful  treatment,  which  she,  the  jDlaintiff, 
did  submit  to  and  undergo  at  the  hands  of  the  defendant, 
and  endured  and  suffered  great  pain  and  distress  there- 
under, and  she  was  subjected  to  great  suffering  and  anguish, 
and  is  still  thereby  subject  to  great  pain,  distress,  suffering 
and  inconvenience,  and  j)laintiff  alleges  that  she  has  been 
thereby,  to  wit :  by  the  ignorant,  unskillful,  careless  and 
negligent  treatment  by  the  defendant,  greatly  damaged  and 
injured  and  crippled  and  deformed. 

Wherefore  the  i^laintiff  demands  judgment  for  $10,000^ 
besides  the  costs  of  this  action.' 

S.  D.  F.,  Plaintiff's  Attorney. 
[Office  address.^*] 

[Verification  as  in  forms  Nos.  151,  etc.] 


No.  905. 
Complaint  against  an  Inn-keeper  for  Negligence. 

[Title  of  cause.] 

The  plaintiff  complains  against  the  defendant  and  alleges, 
that  the  said  defendant  before  and  at  the  time  of  tlio  loss 
hereinafter  mentioned  was  and  from  thence  hitherto  hath 
been  and  still  is  an  inn-keeper,  and  as  such  inn-keeper  he, 
the  said  defendant,  hatlj,  for  and  during  all  that  time  kept, 
and  still  doth  keep,  a  certain  common  inn  for  the  reception, 
lodging  and  entertainment  of  travelers,  commonly  called  or 

*  It  is  not  necessary  in  order  to  sus-  Blake  (2  Lans.  206).     The  above  form 

tain  an  action  for  malpractice  against  is  substantially  th(>  complaint  in  Car- 

a  surg-eon,   that  there  should  be  proof  penter  v.  Bhike  (75  N.  Y.,  12).     See, 

of  g-ross  culpability  on  his  i)art ;  hav-  also,  Deeves  v.  Lockliart  (21  W.   D., 

ing  engaged  in  the;  ixii-foi-rnance  of  ser-  185),  Wells  v.  World's  Dispensary  Med- 

vices  requiring  skill  and  care,  he  is  ical  Ass'n  (i»  State  Rep.,  4.52) ;  27  Abb. 

liable  for  a  want  of  the  required  skill,  N.  C,  54,  iwU;  Gedney  v.   Kingsley 

or  for  an  omission  to  exercise  jiroper  (41  Stat(!  Rej).,  7!)4),  Du  Hois  v.  Decker 

care.     (Carpenter  v.  Blake,  75  N.  V.,  (i;?()  N.Y.,  :{25),  Row.;  v.  Lent  (42  State 

12;  aff'gH.  C,  lOHun,  :j.58.)  Rep.,    4S:5),    Winner    v.    Lafhroj)    (07 

See,  also,  Carpent<!r  v.  Blakcf  (50  N.  Hun,  511),  Sdiojien  v.  Ransom  (S:{  Hun, 

y.,  600;  r.n-'g   S.  C,   CO  Barl).,  4.S.S).  2:J4),    Degnan    v.    Ransom    (id,.    2(;7), 

Baird  v.  Ciillctt  (47  N.  Y.,  bSG),   Keily  Burton  v.  (Jovan  (40  A.L.  .1.,  4ilH  ;  1 10 

V.   Colton   (1  City  Ct.,   4:5;t),   Blair  v.  N.  Y.,  OS!);  afJ'g  S.  C..  42  Hun,  055). 

Bartlett  (75  N.  Y.,  150),  CarixMiter  v.  "  8ee  note  2  to  form  No.  122. 


798  FoKMS  Relating  to 

known  by  the  name  or  sign  of ,  situate  and  being 

at . 

That  the  said  defendant  so  being  such  inn-keeper  and  so 
keeping  the  said  inn  as  aforesaid,  the  said  plaintiff  [or  if 
his  servant,  ''one  J.  K.,  the  servant  of  the  said  phiintiff  "], 

on  tlie day  of ,  18 — ,  put  up  iind  was  then 

and  there  received  into  said  inn  as  a  traveler  by  the  said 
defendant,  and  then  and  there  brought  into  tlie  said  inn  a 
certain  box,  containing  certain  wearing  apparel,  goods  and 
chattels,  to  wit,  etc.  [enumerate  chattels],  of  him,  the  said 

plaintiff,  of  great  value,  to  wit :  of  the  value  of 

dollars,  and  which  said  box  and  its  contents  aforesaid  were 
then  and  from  thence,  until  and  at  the  time  of  the  loss  here- 
inafter mentioned,  within  the  said  inn,  and  that  the  said 
plaintiff  [or  the  said  J.  K.,  the  servant  of  the  said  plaintiff], 
during  all  that  time  abided  as  a  traveler  therein.' 

That  the  said  defendant  did  not  keep  the  said  box  and  its 
contents  aforesaid,  so  brought  into  and  so  being  in  the  said 
inn  as  aforesaid,  safely  and  without  diminution  or  losS;  but 
on  the  contrary  thereof,  the  said  defendant  and  his  servants, 
so  negligently  and  carelessly  behaved  and  conducted  them- 
selves in  that  behalf,  that  afterwards,  and  whilst  the  said 
plaintiff  [or  the  said  J,  K.,  the  servant  of  said  plaintiff]  so 
abided  in  the  said  inn  as  aforesaid,  to  wit :  on  the  same  day 
and  year  aforesaid,  the  said  box  and  its  contents  aforesaid 
were,  by  and  through  the  mere  carelessness,  negligence  and 
default  of  the  said  C.  D.  and  his  servants  in  that  behalf, 
wrongfully  and  unjustly  taken  and  carried  away  by  some 
person  or  persons  to  the  said  plaintiff  [or  to  the  said  plain- 
tiff and  J.  K.,  his  servant]  as  yet  unknown,  and  were  and 
still  are  thereby  wholly  lost  to  the  said  plaintiff.' 

Wherefore,  etc.  [prayer  for  judgment]. 

M.  F.,  Plaintiff^ s  Attorney. 
[Office  address."] 

[Verification  as  in  forms  Nos.  151,  etc.] 

*  To  enforce  tlie  liability  the  relation  is  dhe  to  the  negligence  or  fraud  of  the 
of  inn-keeper  and  guest  inustLe  estab-  guest,  or  to  the  act  of  God,  or  the  pub- 
lished. (IngalLsbee  v.  "Wood,  33  N.  Y.,  lie  enemy.  (Hulett  v.  Swft,  33  N.  Y., 
577  ;  Mowers  v.  Fethers,  61  id.,  34  ;  ,571 ;  Ramaley  v.  Leland,  43  id.,  539.) 
i-ev'g  S.  C,  6  Lans.,  112.)  As  to  what  constitutes  the  relation, 

When  the  relation  of  inn-keeper  and  see  above  cases  and  Hancock  v.  Rand 

euest  is  estabHshed,  the  inn-keeper  is  (94  N.  Y.,  1  ;  S.  C,  18  Week.  Dig.,  76), 

liable  as  an  in.=iurer  of  property  entrust-  Converse  v.  Walker  (30  Hiui,  596),  Kop- 

■ed  to  him  by  the  guest,  unless  the  loss  per  v.  Willis  (9  Daly,  460),  Lewis  v. 


Actions  for  Weojstgs.  799. 

No.  906. 
Complaint  against  a  Bailee  for  Negligence. 

[Title  of  cause.] 

The  plaintiff  complains  against  the  defendant  and  alleges, 

that  the  said  plaintiff  heretofore,  and  on  or  about  the ■ 

day  of ,  18—,  at  ■ ,  at  the  special  instance 


Hitchcock  (10  Fed.  R.,  4),  Kom  v. 
Schedler  (15  Week.  Dig.,  468),  Gos- 
tenhofer  v.  Clair  (13  Week.  Dig.,  502), 
Plum  V.  Jamier  (3  Law  Bui.,  36),  Han- 
cock V.  Rand  (94  N.  T.,  1  ;  aff'g  S.  C, 
17  Hun,  279),  Classen  v.  Leopold  (2 
Sweeny,  705),  Coykendall  v.  Eaton  (55 
Barb.,  188),  "Willard  v.  Reinhardt  (2 
E.  D.  Smith,  148),  Gastenhoefer  v. 
Clair  (10  Daly,  265),  Toub  v.  Schmidt 
(60  Hun,  409). 

As  to  liability  under  statutes  of  1855, 
eh.  421,  and  1866,  ch.  658,  see  Purvis 
V.  Coleman  (21  N.  Y.,  Ill),  Hyatt  v. 
Taylor  (42  N.  Y.,  258),  Ramaley  v- 
Leland  (supra),  Wilkins  v.  Earle  (44 
N.  Y.,  172),  Bendetson  v.  French  (46 
N.  Y.,  266),  Rosenplaenter  v.  Roessle 
(54  N.  Y.,  262),  Faucett  v.  Nichols  (64 
N.  Y.,  377). 

The  mere  fact  that  a  guest  at  a  hotel 
takes  the  key  to  his  room,  but  omits  to 
lock  the  door,  does  not  constitute  such 
aegUgence  on  his  part  as  will  I'clieve 
the  landlord  from  liability  for  goods 
stolen  from  the  room  while  the  door 
remains  unlocked.  (Classen  v.  Leo- 
pold, 2  Sweeny,  705.) 

Where  a  guest  at  an  inn  is  notified 
that  he  must  put  his  baggage  in  a  par- 
ticular place,  that  it  may  be  safely 
kept,  and  he  neglects  to  do  so,  the  inn- 
keeper is  not  liable  in  case  of  its  loss. 
(Wilson  V.  Halpin,  30  How.  Pr.,  124  ; 
S.  C,  1  Daly,  496.)  An  inn-keeper'a 
liability  for  the  baggage  of  a  guest 
continues  for  such  a  reaKonal>le  time 
after  the  latter  pays  his  biil  and  leaves 
the  hotel  a.s  may  bt;  necessary  to  secure 
its  removal.  (Maxwell  v.  Gei-ard,  84 
Hun,  537.) 


In  an  action  against  an  inn-keeper  to 
recover  the  value  of  property  lost  by  a 
guest,  proof  of  the  loss  or  larceny  of 
the  goods  from  the  room  in  which  he 
lodged  is  sufficient  proof  of  careless- 
ness on  the  part  of  the  defendants. 
(Gile  V.  Libby,  36  Barb.,  70.) 

The  inn-keeper  is  answerable  to  his- 
guest  for  the  dishonesty  of  a  fellow 
guest.  (Id.)  See,  also,  Jacobi  v. 
Haynes  (14  Misc.  15). 

An  action  lies  against  the  inn-keeper 
for  goods  lost  or  stolen  from  the  inn, 
without  proof  of  negligence.  (Clute 
V.Wiggins,  14  Johns.,  175;  McDonald 
V.  Edgerton,  5  Barb.,  560.) 

Further,  as  to  negligence  on  the  part 
of  guest,  see  Purvis  v.  Coleman  {supra). 
Fowler  v.  Dorlon  (24  Barb.,  384.) 

As  to  what  constitutes  an  inn,  see 
Wintermute  v.  Clarke  (5  Sandf.,  242), 
Taylor  v.  Monnot  (4  Duer,  116;  S.  C, 
1  Abb.,  325),  Carpenter  v.  Taylor  (1 
Ililt.,  193). 

A  demand  before  suit  is  not  neces- 
sary, where  the  goods  are  lost.  (Mc- 
Donald V.  Edgerton  (supra),  Willard  v. 
Reinhardt  (supra). 

As  to  what  property  the  inn-keeper 
is  liable  for  independently  of  the  stat- 
utes, see  Taylor  v.  Monnot  (supra). 
Needles  v.  Howard  (1  E.  D.  Smith,  54). 

See  further,  ch.  237  of  Laws  of  1883, 
amending  ch.  421  of  1855,  by  which 
the  liability  for  loss  of  baggage,  etc., 
exceeding  the  sum  of  $500,  is  made  to 
depend  upon  the  (question  of  the  negli- 
gence of  the  inn-kccper,  who  must, 
however,  establish  as  to  such  proi)erty 
the  absence  of  negligence  on  his  part. 
See,  also,  ch.  284  of  Laws  of  1892. 

*  Sec  note  2  to  fnrni  No.  122. 


800  Forms  Relating  to 

and  request  of  the  said  defendant,  caused  to  be  deliv- 
ered to  him,  the  said  defendant  [a  certain  sideboard],  of 
him,  the  said  i)kiintilt',  of  great  vahie,  to  wit :  of  the  value 
of dollars,  to  be  taken  care  of  and  safely  and  se- 
curely kept  by  the  said  defendant,  for  the  said  plaintiff,  and 
he,  the  said  defendant,  undertook  and  then  and  there  agreed 
with  the  said  plaiutilf,  to  take  due  and  proper  care  of  the 
said  [sideboard]  for  the  said  plaintiff,  and  to  redeliver  the 

same  to  him,  the  said  i^laintiff,   to  wit:  at  ;  yet 

the  said  defendant,  not  regarding  his  duty  in  that  behalf, 
did  not,  nor  would,  take  due  and  proper  care  of  the  said 
[sideboard],  for  the  said  plaintiff  ;  nor  did,  nor  would,  when 
he  was  so  requested  as  aforesaid,  or  at  any  time  before  or 
afterwards,  redeliver  the  same  to  the  said  plaintiff,  but,  ou 
the  contrary  thereof,  he,  the  said  defendant,  so  carelessly  be- 
haved and  conducted  himself  with  resjiect  to  the  said  side- 
board, and  took  so  little  and  such  bad  care  thereof,  that  by 
and  through  the  carelessness,  negligence  and  improper  con- 
duct of  the  said  defendant,  the  said  [sideboard]  became  and 
was  wholly  lost  to  the  said  plaintiff",  to  the  damage  of  the 

plaintiff  of ,  for  which,  etc.  [prayer  for  judgment]. 

M.  F.,  Plaintiff''  s  Attorney. 
[Office  address.'] 
[Verification  as  in  forms  Nos.  151,  etc.] 


^o.  907. 

Complaint  against  the  Owner  of  a  Coach  for  Negligence  of 
Himself  or  of  His  Servant,  in  Driving  the  Same  against 
the  Plaintiff's  Chaise. 

[Title  of  cause.] 

The  complaint  of  the  plaintiff  respectfully  shows,  that 

heretofore,  and  on  the day  of  ,  18 — ,  the 

said  plaintiff,  at ,  was  lawfully  possessed  of  a  cer- 
tain carriage,  to  wit  [a  chaise]  of  great  value,  to  wit:  of 

the  value  of dollars,  and  of  a  certain  horse  \or 

divers,  to  wit,  horses],  then  and  there  drawing 

the  same,  and  \\\  which  said  carriage  the  said  plaintiff  was 

'  See  note  2  to  form  No.  122. 


Actions  for  Wrongs.  801 

then  riding  in  and  along  a  certain  public  and  common  high- 
way, and  the  said  defendant  was  also  then  and  there  pos- 
sessed of  a  certain  other  carriage,  and  of  a  certain  other 

horse  [or  divers,  to  wit, horses]  drawing  the  same, 

and  which  said  carriage,  and  horses  of  the  said  defendant 
were  then  and  there  under  the  care,  government  and  direc- 
tion of  [a  certain,  then  servant  of]  the  said  defendant,  who 
was  then  and  there  driving  the  same  in  and  along  the  said 
highway,  to  wit,  at .  Nevertheless  the  said  de- 
fendant then  and  there  [by  his  said  servant]  so  carelessly 
and  improperly  drove,  governed  and  directed  his  said  car- 
riage and  horses,  that  by  and  through  the  carelessness, 
negligence  and  improper  conduct  of  the  said  defendant  [by 
his  said  servant],  in  that  behalf  [one  of  the  hind  wheels 
of],  the  said  carriage  of  the  said  defendant  then  and  there 
ran  and  struck  with  great  force  and  violence  upon  and 
against  the  said  carriage  of  the  said  plaintiff,  and  thereby 
then  and  there  crushed,  broke  to  pieces,  damaged  and  de- 
stroyed the  same  [and  one  of  the  wheels,  and  the  siDlinter- 
bar  and  one  of  the  shafts  thereof],  and  the  said  carriage  of 
the  said  plaintiff  thereby  then  and  there  became  and  was 
rendered  of  no  use  or  value  to  the  said  plaintiff,  and  thereby 
the  said  jDlaintiff  was  then  and  there  cast  out  and  thrown  with 
great  force  and  violence  from  and  off  his  said  carriage  to  and 
upon  the  ground,  and  thereby  and  by  means  of  the  several 
premises  aforesaid,  the  said  plaintiff  was  then  and  there 
greatly  bruised,  hurt  and  wounded,  and  became  and  was 
sick,  sore,  lame  and  disordered,  and  so  remained  and  con- 
tinued for  a  long  space  of  time,  to  wit :  hitherto,  during 
all  which  time  the  said  plaintiff  suffered  great  pain  and  was 
hindered  and  prevented  from  performing  and  transacting 
his  lawful  affairs  and  business  by  him  during  that  time  to 
be  done  and  transacted  ;  and  also  by  means  of  the  premises, 
was  forced  and  obliged  to  pay,  lay  out  and  expend,  and 
hath  necessarily  paid,  laid  out  and  expended,  divers  large 

sums  of  money,  to  wit :    the  sum  of  dollars,  in 

and  about  endeavoring  to  be  healed  and  cured  of  his  said 
wounds,  hurts  and  bruises,  occasioned  as  aforesaid  ;  and 
also  by  means  of  the  i)remises,  the  said  plaintill'  liadi  paid, 
laid  out  and  expended  a  large  sum  of  money,  to  wit:  the 
101 


802  Forms  Relating  to 

sum  of dollars,  in  and.  about  the  repairing  of  the  said 

chaise  so  damaged  as  aforesaid. 

Wherefore,  etc.  [prayer  for  judgment]. 

M.  F.,  Plaintiff'^  s  Attorney. 
[Office  address.'] 
[Verification  as  in  forms  Nos.  151,  etc.] 


No.  908. 

Complaint  in  Action  for  Slander,  Imputing  Unchastity  to 

a  Woman. 

(Code  Civ  Pro.,  §1906.) 

[Title  of  cause.] 

The  plaintiff  by  her  complaint  says,  that  this  defendant, 
dnring  the  months  of  March  and  February,  1873,  on  divers 
days  contriving,  and  wickedl}^  and  maliciously  intending, 
to  injure  the  plaintiff  in  her  good  name,  fame  and  credit, 
and  to  bring  her  into  public  scandal,  infamy  and  disgrace, 
with  and  amongst  all  her  neighbors,  and  other  good  and 
worthy  citizens,  and  to  cause  it  to  be  suspected  and  believed 
by  those  neighbors  and  citizens  that  the  plaintiff  had  been 
and  was  guilty  of  the  offenses  and  misconduct  hereinafter 
mentioned,  to  have  been  made  and  charged  upon  her  by 
said  defendant,  and  to  vex,  harass  and  oj)press  her,  the  said 
defendant,  did,  at  the  time  aforesaid,  at  Poughkeepsie,  in  a 
certain  discourse  which  the  defendant  then  and  there  had 
in  the  presence  and  hearing  of  divers  good  and  worthy 
citizens,  falsely  and  maliciously  speak  and  declare  of  and 
concerning  the  said  plaintiff,  and  of  and  concerning  the  said 
j)laintiff  in  the  way  of  her  profession  and  business,  then 
false  and  scandalous,  malicious  and  defamatory  words  fol- 
lowing, that  is  to  say  :  Miss  D.  is  a  common  street  runner  ; 
that  men  and  boys  follow  her  through  the  streets  ;  that  Miss 
D.  is  a  common  i)rostitute,  and  that  you  jDut  a  common 
whore  in  a  school-house  full  of  boys  and  what  can  any  one 
expect  to  do  with  them  ;  she  is  a  common  prostitute  ;  she  is 
a  common  whore,  and  runs  with  men  and  boys,  and  you 
put  her,  a  common  whore,  in  the  school-house  full  of  boys  ; 

•  See  note  2  to  form  No.  123, 


Actions  fok  Wkongs.  803 

she  is  a  common  street  runner,  and  boys  follow  her  through 
the  streets  as  she  passes  along. 

By  means  of  the  committing  of  which  said  several  griev- 
ances, by  the  said  defendant  as  aforesaid,  the  said  plaintiff 
has  been  and  still  is  greatly  injured  in  her  good  name  and 
credit,  and  also  greatly  injured  in  her  profession  and  busi- 
ness, and  brought  into  public  scandal,  infamy  and  disgrace, 
with  and  amongst  all  her  neighbors  and  other  good  and 
worthy  citizens,  to  the  damage  of  the  plaintiff  of  $1,000. 

Wherefore,  etc.  [prayer  for  judgment].' 

G.  W.,  Plaintiff'' s  Attorney, 
[Office  address.'] 

[Verification  as  in  forms  Nos.  151,  etc.] 


No.  909. 

Complaint  iu  Action  for  Slander,  General  Form,  for  Words 
Actionable  iu  Themselves. 

[Title  of  cause.] 

The  complaint  of  the  above  named  plaintiff  respectfully 
shows,  that  the  plaintiff  always  was  and  is  a  good,  true  and 
honest  citizen,  and  never  was  guilty  of  any  of  the  crimes 
hereinafter  laid  to  his  charge. 

That  the  said  defendant  knowing  the  jjremises,  but  con- 
triving and  maliciously  intending  to  injure,  defame  and 
slander  the  said  plaintiff  in  his  good  name,  to  wit :  on  the 

day  of ,  18 — ,  at ,  [f]  in  a  certain 

discourse  which  the  said  defendant  then  and  there  had 
[with  the  said  i)laintiff],  in  presence  and  hearing  of  good 
and  worthy  persons,  and  citizens  of  this  State,  [*]  to,  of  and 
concerning  the  said  plaintiff,  these  ftilse,  scandalous  and 
malicious  words  did  speak,  x)ublish  and  declare,  to  wit : 
["you  (the  said  x)laintiff  uKMining)  are  a  robber;  you  (the 
said  plaintiff'  meaning)  are  a  damned  robber ;  1  (the  said 
defendant  meaning)  believe  you  are  a  robber  and  a  thief ; 

•  The  above  form  of  complaint  is  ard  v.  Tulip  f32  ITun,  638),  Sturgcs  v. 

from  Distin  v.  Rose  (69  N.  Y.,  122;  Wiltsic  (19  Week.  Di^'.,  2(1(!  [Siii>.  Ct., 

afif'^T  S.  C.  7  Il'in,  83).  Gen.  Tni.l),  (V)wcll  v.  Day  (18  Week. 

See  notes  to  next  form,  No.  00!),  and  Di;,^,  97  [Suj).  V,\.,  Gen.  Tni.]). 

8ee  Doe  v.  Hoc  (33  llun,  628),  Blanch-  ''  Sec  uolc  2  to  form  No.  123. 


804 


Forms  Relating  to 


you  (the  said  plaintiff  meaning)  are  a  counterfeiter  (meaning 
tliat  the  said  plaint  iff  had  been  guilty  of  counterfeiting 
money,  or  some  evidence  of  debt,  or  some  paper  executed 
for  a  valuable  consideration) ;  I  (the  said  defendant  mean- 
ing) believe  you  are  a  counterfeiter"]  [or  set  forth  in  like 
manner  the  other  slanderous  words,  e.  ^.,  you  (meaning  the 
said  plaintiff)  are  perjured]. 

That  by  reason  of  the  speaking,  xiublishing  and  uttering 
of  wliich  said  false,  scandalous  and  malicious  words  the 
said  x)laintiff  is  greatly  prejudiced  in  his  good  name,  fame 
and  reputation,  and  also  greatly  injured  in  his  profession 
and  business  [set  forth  special  damage,  if  any],*  wherefore 
the  said  plaintiff"  says  that  he  is  injured,  and  has  sustained 
damages  to  the  amount  of  [one  thousand]  dollars," 

Wherefore  the  plaintiff  demands  [insert  prayer  for  judg- 
ment.] 

F.  W.,  Plaintiff'' s  Attorney. 

[Office  address.'] 
[Verification  as  in  forms  Nos.  151,  etc.] 


'  Special  damage  is  only  necessaiy 
to  be  averred  (in  order  to  sustain  the 
action)  where  it  constitutes  in  part  the 
cause  of  action.  In  other  words,  where 
the  right  to  maintain  the  action  depends 
upon  the  fact  that  the  damage  has  been 
sustained.  (Fagen  v.  Davison,  2  Duer, 
153.  citing  Linden  v.  Graham,  1  id., 
670;  Kendall  v.  Stone,  1  Selden,  14.) 
But  no  evidence  can  be  received  in  an 
action  of  slander,  of  any  loss  or  injury 
which  the  plaintiff  has  sustained  by 
the  speaking  of  the  words,  unless  it  be 
specially  stated  in  the  complaint,  and 
this  rule  applies  equally  to  the  case 
where  the  special  damage  is  the  gist 
of  the  action  and  where  the  words  are 
actionable,  -per  se.  (Haliock  v.  Miller,  2 
Barb..  G30.) 

In  the  latter  case,  where  no  special 
damage  is  averred,  the  law  implies 
damages,  the  extent  of  which  is  to  be 
judged  of  by  the  jury  from  the  facts 
proved,  the  circumstances  and  aggra- 
vation attending  the  uttering  of  the 


slanderous  words.     (Herrick  v.  Lap- 
ham,  10  Johns.,  231.) 

^  It  is  not  necessary,  in  an  action  for 
libel  or  slander,  to  state,  in  the  com- 
plaint, any  extrinsic  fact,  for  the  pur- 
pose of  showing  the  application  to  the 
plaintiff,  of  the  defamatory  matter ; 
but  the  ])laintiff  may  state,  generally, 
that  it  was  published  or  spoke.n  con- 
cerning him  ;  and  if  that  allegation  is 
controverted,  the  plaintiff  m\ist  estab- 
lish it  on  the  trial.  In  such  an  action, 
the  defendant  may  prove  mitigating 
circumstances,  notwithstanding  that 
he  has  pleaded  or  attempted  to  prove  a 
justification.     (Code  Civ.  Pro.,  §  535.) 

Where  the  answer  alleges  in  justifi 
cation  the  truth  of  the  words  spoken, 
it  is  not  error  to  refuse  to  charge, 
as  matter  of  law,  that  the  answer  can- 
not be  considered  by  the  jury  to  en- 
hance the  damages.  Notwithstanding 
the  change  effected  by  the  Code,  in 
allowing  nvitters  to  be  adduced  in  jus- 
tification, although  insuflftcient  for  that 


Actions  for  Weongs. 


805 


No.  910. 

Statement  of  Special  Damages  in  Complaint  for  Slander. 

By  means  of  whicli  said  premises  the  said  plaintiff  liath 
been  and  is  greatly  injured  in  his  credit  and  reputation, 
and  brought  into  public  scandal,  infamy  and  disgrace  with 
and  amongst  all  his  neighbors,  friends  and  acquaintances, 
insomuch  that  divers  of  those  friends  and  neighbors,  and 
especially  A.  B.,  C.  D.,  E.  F.,  etc.  [the  persons  hereinbe- 
fore in  that  behalf  named],  have  wholly  refused  to  permit 
any  intercourse  or  society  with  him,  or  to  receive  or  admit 
him  into  their  respective  houses  or  company,  or  to  find  or 
provide  for  him  meat,  drink  or  any  other  benehts  and  ad- 
vantages in  any  manner  whatsoever,  as  they  before  that  time 
had  done,  and  otherwise  would  have  continued  to  have 


purpose,  to  be  used  in  mitigation  of 
damages,  still,  where  there  is  an  en- 
tire failure  to  sustain  the  slander,  and 
the  circumstances  show  that  the  reit- 
eration in  the  answer  was  malicious 
and  without  probable  cause,  for  be- 
lieving it  true,  it  may  be  considered 
by  the  jury  on  the  question  of  dam- 
ages ;  but,  it  seems,  this  rule  should 
be  contined  to  capes  of  bad  faith. 
(Distin  V.  Rose,  69  N.  Y.,  122  ;  aff'g  S. 
C.,  7  Hun,  83.)  And  see  further,  as 
to  pleading  in  action  of  slander  and 
libel,  under  above  section,  Kelly  v. 
Waterbury  (87  N.  Y,,  179),  Hamdton 
V.  Eno  (81  N.  Y.,  116).  Hatfield  v. 
Lasher  (81  N.  Y.,  246  ;  aff'g  S.  C,  17 
Hun,  23),  Willover  v.  H,ll  (72  N.  Y., 
36),  Fleischman  v.  Bennett  (87  N.  Y., 
231  ;  aff'g  S.  C,  23  Hun,  200),  Have- 
meyer  v.  Fuller  (10  Abb.  N.  C,  9  ;  60 
How.  Pr.,  316),  Gunning  v.  Appleton 
(58  How.  Pr.,  471),  Hallock  v.  Miller 
(2  Barb.,  630;  19  W.  D,  14.5);  and 
see  Thomas  v.  Smith  (75  Hun,  573), 
Germ  Proof  Filter  Co.  v.  Pasteur  Fil- 
ter Co.  (81  id.,  49),  Holtnes  v.  Jones 
(121  N.  Y..  4G1,  rev'g  S.  C,  50  Hun, 
345),  Marx  v.  Press  Publishing  Co. 
(134  N.  Y.,  561),  Warner  v.  Same  (132 
id.,  181),  Cruikshaiik  v.  Gordon  (118 
id.,  178,  aff'g  S.  C,  48  Hun,  308), 
Lanpher  v.  Clark  (77  Hun,  506),  Car- 
l)enter  v.  Knapp  (74  id.,  99),  Rennie 
V.  Ryder  (28  State  Rep.,  141),  Ward 
v.  Deatie  (32  State  Rep..  270),  Fitz- 
gerald V.  Gf'ilH  (84  Hun,  295),  Nealou 
V.  Frisbie  (11  Misc  ,  12). 

In  an  actif)ri  for  slander,  where  the 
words  are  actionable,  j)''^  •^''^>  '>■"  '^''"" 


gation  of  malice  in  the  complaint  la 
not  necessary.  In  such  an  action,  if 
the  truth  of  the  words  spoken  is  relied 
U2ion  as  a  defense,  the  particulars 
must  be  set  forth  in  the  answer. 
(Robinson  v.  Hatch,  55  How.  Pr.,  55.) 

The  defendant  may  show  in  mitiga- 
tion that  the  words  were  spoken  in 
the  heat  of  passion,  caused  by  recent 
provoking  conduct  on  the  part  of  the 
plaintiff.   (Palmer  v.  Lang,  7  Daly,  33.) 

As  to  what  words  ai-e  actionable, 
per  se,  see  Robertson  v.  Bennett  (44 
N.  Y.  Super.  Ct.,  6L),  Trimmer  v. 
Hiscock  (27  Hun,  364),  White  v. 
Cheesbro'  (16  Week.  Dig.,  18i;).  And 
as  to  cases  in  which  special  damages 
may  be  i-ecovered,  see  Terwilliger  v. 
Wanda  (17  N.  Y.,  54,  59;  aff'g  S.  C, 
2.T  Barb.,  313),  Fowles  v.  Bowen  (30 
N.  Y.,  20),  Bassell  v.  Elmore  (48  N. 
Y.,  561),  Anonymous  (60  N.  Y.,  262), 
Gideon  v.  Dwyer  (87  Hun,  246), 
Maeske  v.  Smith  (35  State  Rep.,  541), 
Courtney  v.  Manheiin  (35  id.,  125), 
Erwin  v.  Dezell  (64  Hun.  391). 

As  to  bill  of  ])articulai's  in  action  for 
slander,  see  Gardinier  v.  Knox  (27 
Hun,  500). 

The  2>laintiff  should  not  be  allowed 
to  amend  his  complaint,  by  incrcHsing 
his  claim  for  damages,  a  jilea  of  justi- 
fication havnig  faileil.  (McGuttkin  v. 
Sister,  2  Edm.  Sel.  Cas.,  466.) 

As  to  husband's  liability  foi-  slander 
by  his  \\'\U\  under  nianit'd  woman's 
acts,  see  Tait  v.  Culbertson  (57  JJarh., 
9),  Norris  v.  Corkhill  (32  Kans.,  409  ; 
31  Alb.  Law  .!.,  62  . 

'See  note;  2  to  form  No.  122. 


806  Forms  Relating  to 

done,  whereby  the  said  plaintiff  hath  lost  all  these  valuable 
benefits  and  advantages,  being  to  him  of  great  value,  to  wit : 
of  the  value  of dollars,  and  hath  been  and  is  greatly- 
reduced  and  prejudiced  in  his  fortunes  and  pecuniar}^  cir- 
cumstances, and  obliged  to  incur  a  much  greater  expense 
in  his  necessary  living  and  supporting  himself,  to  a  large 

amount,  to  wit :  to  the  annual  amount  of  dollars 

than  he  theretofore  had  done,  and  otherwise  would  have 
continued  to  do,  and  hath  been  and  is  greatly  im^wverished, 
and  all  his  friends  have  wholly  withdrawn  their  friendship 
and  acquaintance,  to  the  damage,  etc. 


No.  911. 

Complaint  for  Slamlerons  Words  Indirectly  Accusing 
Plaintiff  of  a  Specific  Ofl'ense. 

As  in  form  No.  909  to  [*],  and  from  thence  as  follows  : 
Falsely  and  maliciously  spoke  and  j^ublished,  of  and  con- 
cerning the  said  plaintiff,  and  of  and  concerning  the  [theft 
of  certain  goods  and  chattels,   to  wit :  of  two  spoons  and 

six  linen  cloths  of  one  E.  F.  of  the  value  of ,  which 

had  been  theretofore  feloniously  stolen,  taken  and  carried 

away,  to  wit :  at ,  on  or  about  the day  of 

,  18 — ],  the  false,  etc.,  words  following,  that  is  to 

say,  he  [meaning  the -said  plaintiff]  had  a  hand  in  the  affair 
[meaning  the  said  theft  of  the  said  goods  and  chattels],  and 
thereby  then  and  there  meaning  that  the  said  plaintiff  had 
been  and  was  guilty  of  [feloniously  stealing,  taking  and 
carrying  away  of  the  said  goods  and  chattels]  ;  insomuch 
that  divers  of  these  persons,  neighbors  and  citizens,  to 
whom  the  innocence  and  integrity  of  the  said  plaintiff  in 
the  premises  were  unknown,  have,  on  account  of  the  speak- 
ing and  publishing  of  which  said  several  false,  malicious 
and  defamatory  words  [or  committing  of  said  grievances], 
by  said  defendant  as  aforesaid,  from  thence  hitherto  sus- 
pected and  believed,  and  still  do  suspect  and  believe,  the 
said  plaintiff  to  have  been,  and  to  be,  a  person  guilty  of 
[theft]  so  as  aforesaid,  charged  upon  and  imputed  to  him 
by  the  said  defendant,  and  have,  by  reason  of  the  commit- 
ting of  the  said  grievances  by  the  said  defendant  as  afore- 


Actions  for  Wrongs.  807 

said,  from  thence  hitherto  wholly  refused,  and  still  do  refuse, 

to  have  any  transaction,  acquaintance  or  discourse  with  him, 

the  said  plaintiff,  as  they  were  before  used  and  accustomed 

to  have,  and  otherwise  would  have  had,  and  also  by  reason 

of  the  premises,  etc.  [here  state  any  special  damages  that 

may  have  arisen  to  plaintiff  in  consequence  of  the  slander], 

and  also  by  means  of  the  premises,  the  said  plaintiff  hath 

been,  and  is,  otherwise  much  injured  and  damnilied,  to  the 

damage  of  the  said  plaintiff  of dollars,  for  which 

amount,  etc.  [prayer  for  judgment]. 

[Signature,  etc.] 

[Verification  as  in  forms  Nos.  161,  etc.] 


No.  912. 

Complaint  for  Slander  where  the  words  are  Spoken  Ironi- 
cally. 

As  in  form  No.  909  to  [*],  and  from  thence  as  follows : 
In  an  ironical  manner,  falsely  and  maliciousl}'  spoke  and 
published  of  and  concerning  the  said  plaintiff,  the  ironical, 
false,  scandalous,  malicious  and  defamatory  words  follow- 
ing, that  is  to  say,  he  [meaning  the  said  plaintiff],  is  no 
thief  [thereby  then  and  there  meaning  that  the  said  plain- 
tiff had  been  and  was  a  thief,  and  the  said  persons  and  citi- 
zens of  this  State  then  and  there  understood  that  that  was 
the  meaning  of  the  said  words]. 

[Conclude  as  in  form  No.  909.] 


No.  913. 

Complaint  for  Slander  where  it  is  to  be  Collected  from 
Question  and  Answer. 

As  in  form  No.  909  to  [*],  and  from  thence  as  follows : 
Of  and  concerning  the  said  plaintiff  and  in  answer  to  the 
following  question  then  and  there,  in  the  presence  and  hear- 
ing of  the  said  last  mentioned  citizens,. put  by  the  said  plain- 
tiff to  the  said  defendant,  that  is  to  say:  "What,  do  you 
[meaning  the  said  defendant]  mean  to  say  I  [meaning  him- 
self, the  said  plaintiff"]  am  a  sliee])  stealer? "  then  and  there, 
in  the  presence  and  hearing  of  the  said  last  mentioned  citi- 


808  Forms  Relating  to 

zens,  falsely  and  maliciously  answered,  spoke  and  pub- 
lislied,  to,  and  of  and  concerning  the  said  plaintiff,  these 
false,  scandalous,  malicious  and  defamatory  words  follow- 
ing, that  is  to  say:  "Yes,  you  [meaning  the  said  lolaintiff] 
are,"  tliereby  then  and  there  meaning  that  the  said  plain- 
tiff had  been  and  was  guilty  of  sheep  stealing. 
[Conclude  as  in  form  No.  909.] 


No.  914. 
Answer  Justifying  a  Charge  of  Perjury. 

[Title  of  cause.] 

The  defendant  [further]  answering  the  complaint  alleges, 
that  before  the  speaking  and  publishing  of  the  said  words, 
of  and  concerning  the  plaintiff,  as  in  the  said  complaint 
chjjrged,  to  wit:  at  a  term  of  a  circuit  court  held  at  the 

[city]  of ,  in  the  month  of ,  18 — ,  then  and 

there  holden  before  one  of  the  judges  of  this  court,  accord- 
ing to  the  form  of  the  statute  in  such  case  made  and  i3ro- 
vided,  a  certain  issue  before  then  joined  in  an  action  brought 
and  prosecuted  in  this  court  by  and  at  the  suit  of  one  A.  B., 
as  plaintiff,  against  C.  D.,  as  defendant,  for  the  suj^posed 
breach  of  certain  promises  and  undertakings,  came  on  to 
be  tried  in  due  form  of  law,  and  was  then  and  there  tried 
by  a  jury  of  the  country  in  that  behalf,  duly  taken  and 
sworn  between  the  parties  aforesaid  ;  and  upon  such  trial 
of  the  said  issue,  this  plaintiff  appeared  as  a  witness  for 
and  on  behalf  of  the  said  A.  B.,  the  plaintiff  in  the  said 
action,  and  this  plaintiff  was  then  and  there  in  open  court, 
holden  as  aforesaid,  before  the  said  judge  thereof,  duly 
sworn  and  took  his  corporal  oath  upon  the  holy  gospel  of 
God,  to  speak  the  truth  the  wdiole  truth  and  nothing  but 
the  truth,  touching  and  concerning  the  matters  in  question 
in  tlie  said  issue  ;  the  said  court  then  and  there  having  suf- 
licient  power  and  authority  to  administer  the  said  oath  to 
this  plaintiff  in  that  behalf  ;  and  upon  the  trial  of  the  said 
issue  it  then  and  tliere  became  and  was  material  to  ascertain 
the  truth  of  the  matters  hereafter  stated  to  have  been  sworn 
by  this  plaintiff. 


Actions  for  Wrongs.  809 

And  tliis  defendant  further  says,  that  this  plaintiff  being 
so  sworn  as  aforesaid,  upon  his  oath  as  aforesaid,  falsely, 
willfully,  maliciously  and  corruptly,  and  by  his  own  act 
and  consent,  did  depose,  swear  and  give  evidence,  amongst 
other  things,  at  and  upon  the  said  trial,  that  [here  set  forth 
that  part  of  plaintiff's  evidence  in  which  he  committed 
perjury]  ;  whereas,  in  truth  and  in  fact  [here  negative  the 
plaintiffs  evidence  as  in  an  indictment  for  perjury];  and 
tbis  plaintiff  did  thereby  in  the  said  court,  so  holden  as 
aforesaid,  upon  his  said  oath  upon  the  trial  of  the  said 
issue,  falsely,  wickedly,  willfully  and  corruptly  commit 
willful  and  corrupt  perjury  ;  w^herefore  this  defendant  at 
the  several  times  spoke  and  published  of  and  concerning 
the  said  plaintiff,  the  said  several  words  in  the  said  com- 
plaint mentioned  to  have  been  spoken  and  published  by 
the  said  defendant,  of  and  concerning  this  plaintiff,  as  it 
was  lawful  for  him  to  do  for  the  cause  aforesaid. ^ 

[Signature,  etc.,  as  in  form  No.  909.] 

[Verification  as  in  forms  Nos.  151,  etc.] 


No.  915. 

Complaint  for  Slandering  a  Person  iu  His  Trade  by  Calling 
Him  a  Rogue,  etc. 

[Title  of  cause.] 

The  complaint  of  the  above  named  plaintiff  respectfully 
show\s,  that  the  said  plaintiff,  at  the  time  of  the  commit- 
ing  of  the  grievances  by  the  said  defendant,  as  hereinafter 
mentioned,  was  of  good  reputation  and  credit,  and  was  en- 
gaged in  business  as  a  [merchant]  at ,  and  has  been 

from  thence  hitherto,  and  still  is,  engaged  in  said  business. 

That  the  said  defendant  on  the day  of , 

18 — ,  contriving,  and  wickedly  and  maliciously  intending  to 
injure  the  plaintiff  in  his  good  name,  fame  and  credit,  and 
to  bring  him  into  public  scandal,  infamy  and  disgrace  with 
and  amongst  all  his  neighbors  and  ofher  good  and  worthy 
citizens,  and  to  cause  it  to  be  suspected  and  believed  by 
these  neighbois  and  citizens,  that  tiie  said  plaintiff  liad  been 
and  was  guilty  of  the  offenses  and  misconduct  lu'ivinafter 
mentioned  to  have  been  made  and  charged  upon  him  by  the 

'  Spooiier  V.  Keeler  (51  N.  Y.,  527),  Burns  v.  Monell  (26  State  Rep.,  942). 
102 


810  Forms  Relating  to 

said  defendant,  and  to  vex,  harass  and  oppress  the  plaintiff, 

on  or  about  the day  of ,  18 — ,  at , 

in  the  presence  and  hearing  of  divers  good  and  worthy  per- 
sons, falsely  and  maliciously  spoke  and  published  of  and 
concerning  the  plaintiff,  and  of  and  concerning  him  in  his 
said  trade  and  business,  the  false  and  defamatory  words  fol- 
lowing, that  is  to  say,  "he"  [meaning  the  said  plaintiff]  ''is 
a  great  rogue,  and  keeps  false  books,"  etc.  [here  set  out  the 
slanderous  words  with  jDroper  innuendos]. 

That,  b}^  means  of  the  premises,  the  plaintiff  has  sus- 
tained great  loss  and  damage,  and  b}^  means  thereof  divers 
persons,  to  wit,  A.  B.  &  Co.  and  C.  D.  and  E.  F.,'  who,  re- 
spectively, before  the  time  of  the  committing  of  the  said 
grievances  had  been  and  were  customers  of,  and  used  and 
accustomed  to  deal  with  the  plaintiff  in  the  way  of  his  afore' 
said  business,  to  the  great  proht  and  advantage  of  the  said 
plaintiff,  have  from  thence  hitherto  wholly  neglected  and 
refused,  and  still  do  neglect  and  refuse,  to  continue  as  such 
customers,  or  to  deal  with  the  said  plaintiff,  and  [allege 
any  further  special  damage],  and  has,  by  means  of  the 
premises,  been  greatly  damaged  in  reputation  and  credit, 
and  in  his  said  business  otherwise  greatly  injured  and 
damnified. 

Wherefore  the  plaintiff  demands  judgment,  etc.  [insert 
l^rayer  for  judgment]. 

A.  B.,  Plaintiff'' s  Attorney. 
[Office  address.*] 

[Verification  as  in  forms  Nos.  151,  etc.] 

'  A  plaintiff  who  brings  an  action  tionable    in   themselves,   must    result 

for  slander,  by  which  he  lost  his  cus-  from  injury  to  the  plaintiff's  reputa- 

tomers  in  trade,  cannot  prove  that  any  tion,    which   affects    the    conduct  of 

persons  not  named  in  his  declaration  others  towards  him.     His  mental  dis- 

left  off  dealing  with  him  in  conse-  tress,  physical  illness  and  inability  to 

quence  of  the  words  spoken.     (Hal-  labor,    occasioned   by   the    aspersion, 

lock  V.  Miller,  2  Barb..  630.)  are  not  such  natural  and  legal  conse- 

And,  it  seems,  that  the  customers  quences  of  the  Avords  spoken,  as  to 

themselves  are  the  only  proper  wit-  give  an  action.    (Terwilligerv.Wands, 

ne.s.ses  of  the  fact,  and  that  fheir  dec-  17  N.  Y.,  54).     And  see  35  Hun,  622. 

larations  cannot  be  proved.     (Id.)  See,  also,  notes  to  forms  Nos.  908, 

The  special  damage  to  support  an  909 ;  Gideon  v.  Dwyer,  87  Hun,  246. 

act'on  for  defamatory  words,  not  ac-  '  See  note  2  to  form  No.  122. 


AcTioNri  FOii  Wko:ngs.  811 

No.  916. 
Complaint  in  Action  for  Slander  of  Title. 

[Title  of  cause.] 

The  complaint  of  the  above  named  plaintiff  respectfully 
shows,  that  the  said  plaintiff  was  before  and  at  the  time  of 
the  committing  of  the  grievances  by  the  said  defendant 
hereinafter  mentioned,  seized  in  fee  [or  name  other  estate] 

of  certain  premises  situated  in  the  town  of ,  in  the 

county  of ,  described  as  follows  [insert  brief  de- 
scription]. 

That  the  said  plaintiff  being  so  seized  of  said  premises 
was  desirous  of  selling  the  same  by  public  auction,  and  for 
that  purpose  caused  the  said  premises  to  be,  and  the  same 

were,  on  the day  of ,  18 — ,  put  up  and 

exposed  for  sale  by  public  auction  [by  one  G.  H.  as  the 
agent  and  auctioneer  of  the  said  plaintiff]. 

That  the  said  defendant  well  knowing  the  premises,  but 
contriving  and  falsely  and  fraudulently  intending  to  injure 
the  said  ijlaintiff,  and  to  cause  it  to  be  suspected  and  be- 
lieved that  he,  the  said  plaintiff,  had  no  title,  estate  or 
interest  of,  in  and  to  the  said  land,  watli  the  appurtenances, 
and  to  hinder  and  prevent  the  said  plaintiff  from  selling  or 
disposing  of  the  same,  and  otherwise  to  injure  the  plaintiff 
and  put  him  to  expense  and  trouble,  falsely  and  malici- 
ously caused  and  procured  a  certain  j)erson,  to  wit :  one 
W.  M.  to  attend  and  be  present,  at  and  upon  said  sale,  and 
before  the  said  estate  and  interest  has  been  sold  and  dis- 
posed of,  falsely  and  maliciously  caused  and  procured 
the  said  W.  M.  to  assert  and  represent,  and  the  said  M.  N. 
did  then  and  there  accordingly,  in  the  presence  and  hearing 
of  divers  citizens  of  this  State  then  and  there  present,  of 
and  concerning  the  plaintiff  [and  of  and  concerning  the  said 
G.  H.,  so  being  such  auctioneer  as  aforesaid],  and  of  and 
concerning  the  said  land  and  appurtenances  and  the  plain- 
tiff's said  estate  and  interest  therein,  as  follows  [stating  the 
words  with  proper  innuendos]. 

Tliat  by  means  of  the  committing  of  said  several  griev- 
ances by  the  defendant  as  aforesaid  divers  of  the  said  citi- 
zens, who  were  present  at  said  sale  and  who  were  tluni  and 


812  Forms  Relating  to 

there  about  to  be  and  become  j)urcliasers  of  the  said  land, 
and  e.specially  J.  K.,  who  was  then  and  there  about  to  bid 
for  and  would  otherwise  have  purchased  the  same,  were 
then  and  there  prevented  from  bidding  for  and  becoming  the 
purchasers  thereof,  and  from  thence  hitherto  have  wholly 
declined  to  purchase  the  same,  and  thereby  the  said  plain- 
till  has  not  only  lost  and  been  deprived  of  all  the  emolu- 
ments and  advantages  which  he  might  and  would  have 
derived  and  acquired  from  the  sale  thereof,  but  has  been 
forced  to  jiay  and  expend  large  sums  of  money,  to  wit :  the 

sum  of dollars,  in  and  about  the  said  exposure  to 

sale,  and  the  expenses  incidental  thereto. 
Wherefore,  etc.  [prayer  for  judgment].' 

A.  M.,  Plaintiff  ^  s  Attorney, 
[Office  address."] 


No.  917. 
Complaint  in  Action  for  Libel. 

[Title  of  cause.] 
The  plaintiff,  in  his  comiDlaint,  says,  that  this  defendant, 

*  As  to  action  for  slander  of  title  to  spoken  by  the  defendant — Tield,  the  ac- 

personal  property  and  what  must  ap-  tion  could  not  be  maintained ;  that  the 

pear  to  maintain  it,  see  Like  v.  Mc-  damages,  if  any,  were  the  consequence 

Kiiistry  (41  Barb.,  186;  atf'd  4  Keyes,  of  the  voluntary  act  of  the  plaintiff, 

397  ;  3  Abb.  App.  Dec,  t)2).  and  not  of  the  words  spoken  by  the 

It  is  necessary  to  name  in  the  com-  defendant.  (Id.) 
plaint  in  an  action  for  slander  of  title.  To  sustain  the  action,  not  only  sj>e- 
whereby  the  plaintiff  was  prevented  cific  falsity,  but  the  loss  of  a  purchaser 
from  obtaining-  a  loan  upon  the  mort-  in  consequence  must  be  alleged.  De- 
pag«  of  the  property,  or  from  selling  lay  in  consummating  the  sale  is  not 
it,  the  person  or  persons  who  refused  enough,  nor  a  general  depreciation  in 
frr  that  cause  to  loan  or  purchase.  If  value.  (Bonanza  Development  Co.  v. 
not  named  the  complaint  is  demurra-  Hayes,  5  Month.  L.  Bui.,  28.) 
ble.  (Linden  v.  Graham,  1  Duer,  670.)  See  further,  as  to  damages  recover- 
To  maintain  an  action  for  slander  of  able  in  the  action,  etc.,  Like  v.  Mc- 
title  to  lands,  the  words  spoken  must  Kinstry  (suj^ra),  Kendall  v.  Stone 
not  only  be  false,  but  they  must  be  (.swpj-a),  Childs  v.  Tuttle(48  Hun,  228), 
uttered  maliciously,  and  be  followed  Germ  Proof  Filter  Co.  v.  Pasteur  Fil- 
as  a  natural  and  legal  consequence  by  ter  Co.  (81  id.,  49),  John  W.  Lovell 
a  pecuniary  damage  to  the  plaintiff,  Co.  v.  Houghton  {'A  Super.  Ct.,  60), 
which  must  be  specially  alleged  and  Dodge  v.  Colby  (37  Hun,  51.');  108  N. 
proved.  (Kendall  v.  Stone,  5  N.  Y.,  Y.,  445),  Breiitman  v.  Note  (3  N.  Y. 
14;  rev'gS.  C.,2Sandf.  S.  C.  R.,269.)  Supp.,  420).  Cornwell  v.  Parke  (52 
Where  an  existing  contract  of  sale  Hun,  596),  Bonanza  Develoi)ment  Co. 
was  voluntarily  annullei I  by  the  plain-  v.  Hayes  (5  Month.  Law  Bull.,  28), 
tiff,  at  the  request  of  the  other  con-  Hastings  v.  Giles  Lithographic  Co. 
tracting  party  based  upon  the  words  (51  Hun,  364). 


Actions  for  Wrongs.  813 

on  the day  of ,  18 — .  contriving  and  wickedly 

and  maliciously  intending  to  injure  the  plaintiff  in  his  good 
name,  fame  and  credit,  and  to  bring  him  into  public  scan- 
dal, infamy  and  disgrace  with  and  amongst  all  his  neigh- 
bors, and  other  good  and  worthy  citizens,  and  to  cause  it 
to  be  suspected  and  believed  by  those  neighbors  and  citi- 
zens, that  the  said  plaintiff  had  been  and  was  guilty  of  the 
offenses  and  misconduct  hereinafter  mentioned  to  have  been 
made  and  charged  upon  him  by  the  said  defendant,  and  to 
vex,  harass  and  oppress  him,  the  said  defendant,  did,  on  the 
day  of aforesaid,  at ,  [^-J  falsely,  wick- 
edly and  maliciously  compose  and  publish,  and  cause  and 

procure  to  be  published,  in  a  newspaper  called  the , 

of  and  concerning  him,  the  said  plaintiff,  a  false,  scandalous 
and  defamatory  libel,  containing,  amongst  other  things,  the 
false,  scandalous,  malicious,  defamatory  and  libelous  matter 
following,  of  and  concerning  the  said  plaintiff,  that  is  to  say 
[here  set  forth  the  libelous  matter  with  the  innuendos,  etc.], 
by  means  of  committing  of  which  said  several  grievances  by 
the  said  defendant,  the  plaintiff  hath  been,  and  still  is, 
greatly  injured  in  his  good  name,  fame  and  credit,  and 
brought  into  public  scandal,  infamy  and  disgrace  with  and 
amongt  all  his  neighbors,  and  other  good  and  worthy  citi- 
zens [set  forth  special  damages],  to  the  damage  of  this  plain- 
tiff of dollars. 

AVherefore  plaintiff  demands  judgment,  etc.  [prayer  for 
judgment].' 

M.  F.,  Plaintiff's  Attorney. 
[Office  address."*] 

[Verification  as  in  forms  Nos.  151,  etc.] 

'See,  generally,  as  to  action  of  lilml  Purdy  v.  Rochester  Printing-  Co.  (96 

and     pl«a(ling-a     therein,    Wooils    v.  N.  Y..  372  ;  rev'g  S.  C,  26  Hun.  206), 

Pangbuni  (75  N.  Y.,  495;  rev'g  S  C,  Brooks  v.  Harison  (91  N.  Y..  83),  Peo- 

14    Hun,   .'■)40),  Daly  v.  Byrne  (77  N.  j)le  v.  Isaacs  (I    N.  Y.  Crini.  R.,  148), 

Y.,    182),   Kelly  v.  Waterlmry  (87  id.,  Lyons  v.  Townsend  (2  Edin.  Sel.  Cas., 

179),  Hamilton    v.   Eno  (al    id.,  116),  452),  Kinney  v.  Roberts  &  Co.  (26  Hun, 

Hattield  v.  Lasher  (Si  id.,  246  ;  afl'gS.  166),  Van  Aernam  v.  McCune  (3J  Hun, 

C,  17  Hun,  23).  Willover  v.  Hill   (72  316),  Bergmann  v.  Jones  (94    N.   Y., 

N.  Y.,  36),  Fleischman  v.  Bennett  (87  51),  llinnian  v.   Hare  (19  Week.    Dig., 

id.,231  ;  afPgS.  C..23  IIun,200),  Wal-  441    [Sup.   Ct.,  Gen.  T.]),  Prescott  v. 

lace  V.  Benriet(l  Abb  N.  C,  478),  Bell  Tousey   (18  Week.   Dig.,   468  [N.  Y. 

V.  Sun   Printing,  etc.,  Co.  (42  N.  Y.  Super.    Ct.,    Gen.    T.  |),   section    535, 

Sujjer.  Ct.,  ,567;  8.  C,  3  Abb.  N.  C.  Code  Civ.  Pro.,  cited  in  note  1  to  form 

157),  Havemeyer  v.    Fuller  (10  Abb.  No.  909,  and  Bee  aniong  other  recent 

N.    C,  9;    8.  C,  60  How.  Pr.,  316),  cases.  Moore   v.   Francis  (121    N.   Y., 

Gunning  v.   Appleton   (58   How.   Pr.,  199), Holinesv. Jones  (id.,  461),  John  W. 

471),  Robinson  v.  Hatch  (55  How.  Pr.,  Lovell  Co.  v.  Houghton  (116  id.,  520), 

55),  Palmer  V.  Lang  (7  Daly,  33),  Rob-  Kingsbury   v.  Bradstreet   (^o.  (116  N. 

ertson  v.  Bennett  (44  N.  Y.  Super.  Ct.,  Y.,  211).  Woodrnfl  v.   Bradstreet   Co. 

66),  Younger  v.  Duffie  (26  Hun,  442),  (id.,    217),  Ward   v.  Deano  (82   8t»te 


814  Forms  Relating  to 

No.  918. 

Complaint  for  a  Libel  Containing   Distinct   Passages  of 
Scandalous  Matter. 

As  in  form  No.  917  to  L*J,  and  from  thence  as  follows : 
Falsely,  wickedly  and  maliciously  [compose  andj  publish, 
and  cause  and  procure  to  be  [composed  and]  published, 
of  and  concerning  the  said  plaintiff  [and  of  and  concerning, 
etc.,  if  any  special  inducement  is  to  be  lef erred  to],  a  cer- 
tain false,  scandalous,  malicious  and  defamatory  libel,  in  a 
certain  part  of  which  said  libel  there  was  and  is  contained, 
amongst  other  things,  the  false,  scandalous  and  malicious 
defamatory  and  libelous  matter  following,  of  and  concern- 
ing the  said  plaintiff  [and  of  and  concerning,  etc.,  if  any 
special  inducement  to  be  referred  to],  that  is  to  say  [here 
set  out  the  libelous  paragraph  with  innuendos  as  usual, 
then  proceed  thus],  and  in  another  part  of  which  said  libel 
there  was  and  is  contained,  amongst  other  things,  the  false, 
scandalous,  malicious,  defamatory  and  libelous  matter  fol- 
lowing, of  and  concerning  the  said  plaintiff'  [and  of  and 
concerning,  etc.,  if  any  special  inducement  is  to  be  referred 
to],  that  is  to  say  [here  set  out  the  lil^elous  paragraph  with 
innuendos  as  usual],  and  in  part,  etc.  [so  proceeding  on  to 
state  any  other  libelous  paragraph,  and  conclude  as  in  form 
No.  917]. 

Rep.,  270),  Moj-ey  v.  Morning  Journal  Turton  v.  N.  Y.  Recorder  Co.  (144  N. 

Asso.     (123    N.   Y.,   207),    Mattice   v.  Y.,  144),  Youmans  v.  Paine  (86   Hun, 

Wilcox  (3G  State  Rep.,  914,  affM  41  id.,  479),  Link  v.  Moore  (84  id.,  118),  Hus- 

94tj),    Griebel   v.    Rochester   Printing  sey  v.  N.  Y.  Recorder  Co.  (SO  id.,  609), 

Co.  (60  Hun,  319),  Marx  v.  Press  Pub.  Hawk  v.  Am.  News  Co.  (24  Civ.  Pro. 

Co.  (134  N.  Y.,  ,%1,    aff'g  S.  C,   34  R.,  255). 

State  Re]i.,  316),  Hartman  v.  Morning  An  action,  civil  or  criminal,  cannot 

Journal  Asso.    (46   State   Rep.,    181),  be  maintained  against  a  reporter,  edi- 

Witcher  v.  Jones  (43  id.,  151),  Sawyer  tor,  publisher  or  proprietor  of  a  news- 

V.  Bennett  (49   id.,  774),  Winchell  v.  paper  for  the  publication  therein  of  a 

Argus  Co.  (69   Hun,   154),  Stafford  v.  fair  and  true  report  of  any  judicial. 

Morning  Jour.  Asso.  (68  id.,  467,  aflPd  legislative  or  other  public  and  official 

142   N.    Y.,    59S),    O'Shaughnessy   v.  jiroceedings,   without  proving  actual 

Morning  Jour.  Asso.  (71  id.,  47),  Mat-  malice  in  making  the  report.     (Code 

tice  v.  Wilcox   (id.,  485),  Wellman  v.  Civ.  Pro.,  §  1907.) 

Sun  Printing,  etc.,  Asso.  (66  id.,  331),  The  last  section  does  not  apply  to  a 

Rider  v.   Rulison  (74  id.,  239),  Smith  libel  contained  in  the  heading  of  the 

v.  Matthews  (6  Misc.,  162),  Jesper  v.  report,  or  in  any  other  matter  added 

Press   Pub.  Co.  (76   Hun,  64),  Stokes  by  any  person  concerned  in  the  pub- 

v.  Stokes  (id.,  314),  Keene  v.  Tribune  licption,  or  in  the  report  of  anything 

Asso.  (id.,  488),  Arrow  Steamship  Co.  said  or  done  at  the  time  and  place  of 

v.  Bennett  (73  id..  81).  Hatch  v.  Mat-  the   public   and   official    proceedings, 

thews  (0  Misc.,  307,  aflPd  85  Hun,  322),  which  was  not  a  part  thereof.     (Id., 

Feely  v.  Jones  f79  Hun,  18),  Kingsley  §  1908.) 

V.  Kingsley  (id.,  569),  Holmes  V.Jones  See,  also,   cases   cited   in   notes  to 

(147  N.  Y.,  59),  Palmer  v.  Bennett  (83  form  No.  909,  as  to  damages,  etc. 

Hun,  220),  Johnson  v.  Synett  (89  id.,  "See  note  2  to  form  No.  122. 
192),  Hatch  v.  Matthews  (83  id.,  349), 


Actions  for  Wrongs.  815 

No.  919. 
Same,  for  a  Libel  iu  a  Letter. 

[Proceed  as  in  form  No.  917  to  the  statement  of  the  mode 
of  publication,  and  then  as  follows  :J  In  the  form  of  a  let- 
ter, addressed  to  one  A.  B.,  falsely  and  maliciously,  etc. 
[proceed  as  in  form  No.  917]. 


No.  920. 
Complaint  for  Criminal  Coinersatiou  with  Plaintiff's  Wife. 

[Title  of  cause.] 

The  plaintiff  complains  of  the  defendant  and  alleges,  that 
the  said  defendant  contriving  and  wrongfully  and  wickedly 
and  unjustly  intending  to  injure  the  said  plaintiff,  and  to 
deprive  him  of  the  comfort,  fellowship  and  assistam-e  of  B., 
the  wife  of  him,  the  said  plaintiff,  and  to  alienate  and 
destroy  her  affection  for  him,  the  said  plaintiff,  heretofore 

and  on  the  day  of ,  18 — ,  and  on  divers 

other  days  and  times  since  that  day,  wrongfully,  wickedly 
and  unjustly  debauched  and  carnally  knew  the  said  B. 
being  the  wife  of  the  said  plaintiff,  and  thereby  the  affec- 
tion of  the  said  B.  for  him,  the  said  plaintiff,  was  then  and 
there  alienated  and  destroyed,  and  also  by  reason  of  the 
premises,  the  said  plaintiff  hath,  hence,  hitherto,  wholly 
lost  and  been  deprived  of  the  comfort,  fellowship,  society, 
aid  and  assistance  of  the  said  B.,  his  said  wife,  in  his 
domestic  affairs,  which  the  said  plaintiff  ought  to  have  had 
and  otherwise  would  have  had,  and  has  suffered  great  dis- 
tress of  mind,'  to  the  great  damage  of  the  plaintiff  of 

dollars. 

Wherefore  the  plaintiff  demands,  etc.  [prayer  for  judg- 
ment]. 

A.  F.,  Plaintiff's  Attorney. 

■    [Office  address."] 
[Verification  as  in  forms  Nos.  151,  etc.] 

'  Tho  plaintiff  may  recover  damnires  As  to  dninafres  in  this  action,  and 

heyond  tlie  actual  loss  of  service  in  an  ^iiat  evidence  may  be  triven  in  niiti- 

action  for  seduction  of  a  dauirhler,  for  {jjation  thereof,  see  Smith  v.  Masten  (15 

th«  dishonor  ti)  himself  and  his  family  Wend.,    270).      Se.horn    v.   Berry    (63 

and  for  injured  feelings.     (Per  Gardi-  Ilim,  110). 

ner,  J.,  Dain  v.  Wycoff,  7  N.  Y.,  191.)  An  (;xcc,ntion  may  bi-  isHtied  (igaiiist 

thts  perHon  of  the  judgment  debtor  in 


816  FoKMS  Relating  to 

No.  921. 

Complaint  for  Debauching  Daughter  or  Servant  of 
IMaintiff. 

[Title  of  cause.] 

The  phiintiff  complains  of  the  defendant  and  says,  that 
the  said  defendant  contriving  and  unjustly  intending  to 
injure  the  said  phdntilf,  and  to  deprive  him  of  the  assist- 
ance and  service  of  B.,  tlie  daughter  and  servant  of  the  said 

plaintiff,  on   the day  of ,    18—,  and  at 

divers  other  times  since  the  said day  of , 

18 — ,  at ,  debauched   and   carnally  knew  the  said 

B.,  vi^hereby  the  said  B.  became  piegnant  and  sick  with 
child,  and  so  remained  and  continued  for  a  long  space  of 
time,  to  Avit :  for  the  space  of  nine  months  then  next  follow- 
ing, at  the  expiration  whereof  the  said  B.  was  delivered  of 
the  child  of  which  she  was  pregnant  as  aforesaid,  by  means 
of  which  said  several  premises  she,  the  said  B.,  for  a  long 
space  of  time,  to  wit :  for  the  space  of  two  years,  became 
and  was  unable  to  do  or  perform  the  necessary  affairs  and 
business  of  the  said  plaintiff,  so  being  her  father  and  master 
as  aforesaid,  and  thereby  the  said  plaintiff  lost  and  was  de- 
prived of  the  service  of  his  daughter  and  servant,  and  also 
by  means  of  the  said  several  premises,  the  said  plaintiff 
was  forced  and  obliged  to  and  necessarily  did  pay,  lay  out 

and  expend  divers  sums  of  money,  amounting  to 

dollars,  in  and  about  the  care  and  nursing  of  the  said  B., 
his  said  daughter  and  servant,  and  in  and  about  the  delivery 
of  the  said  child,  and  suffered  great  anxiety  and  distress  of 

body  and  mind,  to  the  damage  of  this  plaintiff  of 

dollars. 

Wherefore  the  plaintiff  demands,  etc.  [prayer  for  judg- 
ment].' 

M.  F.,  Plaintiff's  Attorney. 

[Office  address.'] 
[Verification  as  in  forms  Nos.  151,  etc.]  

•an  action  for  criminal    conversation  ^  See  note  2  to  form  No.  122. 

with  the  plaintiff's  wife.     (Delamater  ^  ^^  action  for  the  seduction  of  his 

V.  Russell,  4  How.  Pr.,  234.)  daughter,  cannot  be  maintained  by  the 

As  to  form  of  complaint  in  this  ac-  father  of  an  indented  servant  against 

tion  and  bill  of  particulars  therein,  seo  the  master  by  whom  she  is  .seduced. 

Tilton  V.  Beacher  (59  N.  Y.,  176).  In  such  an  action  the  plaintiff  must 


Actions  for  Wrongs. 


817 


No.  922. 
Complaint  for  Seductiou  of  PlaiutilTs  Daughter. 

[Title  of  cause.] 

The  complaint  of  the  above  named  plaintiff  respectfully 
shows,  that  before,  and  at  the  time  of  the  committing  of 
the  grievance  hereinafter  mentioned,  Rebecca,  tlje  daughter 
and  servant  of  the  said  plaintiff,  resided  with  the  said  plain- 
tiff, and  greatl}^  assisted  her  in  the  business  of  herself  and 
family,  yet  the  said  plaintiff,  well-knoAving  the  said  premi- 
ses, but  contriving,  etc.,  to  wit,  on  the day  of , 

18 — ,  at ,  falsely  and  wrongfully  represented  to  the 

said  Rebecca,  that  his,  the  said  defendant's  former  wife, 
was  dead,  and  that  he  was  then  and  there  unmarried,  and 
then  and  there  falsely  and  wrongfully  induced  and  per- 
suaded the  said  Rebecca  to  marry  him,  provided  she,  the 
said  plaintiff,  would  consent  thereto  ;  and  in  further  execu- 
tion of  his  said  false,  wicked  and  injurious  acts  herein- 
after mentioned,  the  said  defendant  did   then  and   there 


have  the  right  to  the  ser\'ices  of  the 
person  seduced.  (Dain  v.  Wyckoflf,  7 
X.  Y.,  191.)  But  proof  that  the  de- 
fendant procured  her  to  be  indentured 
as  a  servant  as  a  means  of  affecting 
the  seduction,  is  an  answer  to  the  ob- 
jection that  the  plaintiff  Avas  not  enti- 
tled to  her  services.  (Id.,  18  IST.  Y., 
45.) 

That  a  step-father  cannot  maintain 
the  action  for  the  seduction  of  a  step- 
daughter who  has  left  his  house,  and 
is  seduced  while  in  the  service  of  a 
third  person,  although,  before  the  birth 
of  the  child  she  returns  to  his  house, 
engages  in  his  servic>c,  and  is  there 
nursed  and  attended  during  her  con- 
finement, see  Bartley  v.  Richtmyer  (4 
N.  Y.,  38);  see,  also,  that  cas«,  and 
ca.ses  there  cited,  and  Mulvehall  v. 
Millward  (11  N.  Y.,  343),  White  v. 
Nellis  (31  N.  Y.,  405),  Lipe  v.  Eisen- 
lerd  (33  N.  Y.,  220,  729),  Gray  v.  Dur- 
land  (51  X.  Y.,  424;  alT'g  S.  C,  50 
Barb.,  100),  Furman  v.  Van  Sisc  (50 
103 


N.  Y.,  435).  Certwell  v.  Hoyt  (6  Hun, 
575),  Knight  V.  Wilcox  (14  N.  Y.,  413  ; 
rev'g  S.  C,  18  Barb.,  212),  Leloup  v. 
Eschausse  (2  City  Ct.  Rep.,  55),  Law- 
rence V.  Spence  (99  N.  Y.,  669,  aft"'g 
S.  C,  29  Hun,  169),  Lawyer  v.  Frit- 
cher  (130  N.  Y.,  239;  14  Law.  R.  Ann., 
700),  Ayer  v.  Colgrove  (81  Hun,  322), 
as  to  the  general  principles  upon  which 
the  action  may  be  maintained. 

It  is  no  defense  to  the  action,  that 
the  illicit  connection  was  had  with 
force  and  not  by  consent.  (Lawrence 
V.  Spence  (29  llun,  169  ;  Damon  v. 
Moore,  5  Lans.,  454.) 

As  to  damages  recoverable  in  this 
action,  see  Dain  v.  Wycoff  (7  N.  Y., 
191),  Damon  v.  Moore  {supra),  Lipe  v. 
Eieetilerd  (supra),  Davidson  v.  Abbott 
(52  Vt.,-510;  S.  C,  H6  Am.  R.,  767), 
Savery  v.  Crooke  (52  Wi^.,  612  ;  S.  C, 
38  Am.  R.,  768)  ;  Travis  v.  Burger  (24 
Barb.,  614),  Ingerson  v.  Miller  (47 
Barb.,  47),  Waiulell  v.  E.hvard.s  (26 
Hun,  49"^),.  Code  Civ.  Pro.,  §§  5:56.  508. 


818  Forms  Relating  to 

induce  and  persuade  the  said  plaintiff  to  give  such  consent 
by  the  like  false  and  wrongful  representations  as  aforesaid, 
and  thereupon,  to  wit,  at ,  on,  etc.,  the  said  mar- 
riage was  thereupon  had  and  solemnized  by  and  between 
the  said  Rebecca  and  the  said  defendant,  whereas,  in  fact 
and  in  truth,  the  lawful  wife  of  the  said  defendant  was  then 
living,  to  wit,  at,  etc.;  and  whereas,  also  in  fact  and  in 
truth,  the  said  defendant  was  not  then  unmarried,  and 
which  the  said  defendant  then  and  there  well  knew. 

[That  the  defendant  afterwards  abandoned  the  said  Re- 
becca, and  left  her  wholly  destitute  of  support,  and  still 
does  neglect  and  refuse  to  maintain  and  support  her.] 

By  means  whereof  the  plaintiff  has  been,  and  still  is,  de- 
prived of  the  service  of  the  said  Rebecca,  who  has  been 
rendered  unable  to  maintain  herself  or  assist  the  plaintiff. 

That  the  plaintiff  has  expended  divers  sums  of  money, 

to  wit,  the  sum  of dollars,  about  the  nursing  and 

maintaining  of  the  said  Rebecca,  to  the  damage,  etc' 

M.  F.,  Plaintiff^  s  Attorney. 
[Office  address.'] 

[Verification  as  in  forms  Nos.  151,  etc.] 


No.  923. 

Complaint  for  Harboring  and  Concealing  the  Plaintiff's 

Wife. 

[Title  of  cause.] 

The  plaintiff  complains  of  the  defendant  and  alleges,  that 

heretofore,  and  on  the day  of  ,  18 — ,  the 

said  plaintiff's  wife,  Mary,  without  his  consent,  went  away 
from  him,  and  went  to  the  said  defendant,  who,  well  know- 
ing the  premises,  received  her  and  kept  and  concealed  her 
from  the  said  plaintiff  from  the  day  aforesaid  until  the 
commencement  of  this  suit,  and  wholly  refused  to  deliver 
her  to  the  said  plaintiff,  or  to  discover  her  place  of  resi- 
dence ;  but  unlawfully  entertained  and  harbored  her  during 
all  that  time,  whereby  the  said  plaintiff  was,  during  all 
that  time  and  still  is  depriv^ed  of  her  society,  assistance 


The  action  is  on  the  case  in  tort,  and  'See   Borden   v.    Fitch   (15  Johns. » 

cannot  be  maintained  against  the  rep-  121),  and  see  note  3  to  form  No.  921. 

resentatives  of  the  wrong-doer.    (Hoi-  "  See  note  2  to  form  No.  122. 
liday  v.  Parker,  23  Hun,  71.) 


Actions  for  Weongs.  819 

and  service  in  and  about  her  domestic  affairs,  to  the  dam- 
age, etc' 

M.  N.,  Plaintiff's  Attorney. 

[Office  address.'] 
[Verification  as  in  forms  Nos.  151,  etc.] 


No.  924. 
Compl&int  for  Keeping  Dog  Used  to  Bite  Mankind. 

[Title  of  cause.] 

The  plaib  tiff  complaining  of  the  defendant  says,  that  the 

said  defendant,  on  the day  of  ,  18—,  at 

,  wrongfully  kept  a  dog  which  he,  the  said  defend- 
ant, well  knew  was  accustomed  [*]  to  attack  and  bite  man- 
kind, and  which  dog,  at  the  time  and  place  aforesaid, 
attacked  and  bit  the  plaintiff,  and  did  then  and  there 
greatly  lacerate,  hurt  and  wound  one  of  the  legs  of  the  said 
plaintiff,  whereby  the  said  plaintiff  became  sick,  sore  and 
lame,  and  so  remained  and  continued  for  a  long  space  of 
time,  to  wit :  for  [six  weeks]  then  next  following ;  during 
which  time  he,  the  said  plaintiff,  thereby  suffered  and  un- 
derwent great  pain,  and  was  thereby  prevented  from  per- 
forming and  transacting  his  regular  business  ;  and  also  by 
means  of  the  premises  the  said  plaintiff  was  put  to  great 
expense,  cost  and  charges,  in  the  whole  amounting  to  the 

sum  of  dollars,  in  and  about  endeavoring  to  be 

cured  of  the  said  wounds,  sickness  and  lameness  and  dis- 
order so  occasioned,  and  hath  been  and  still  is  by  means  of 
the  premises  otherwise  greatly  injured  and  damnified,  and 
that  the  amount  of  such  loss  and  injury  is  the  sum  of 
dollars. 

Wherefore  the  plaintiff  demands  judgment,  etc.  [prayer 
for  judgment].' 

M.  F.,  Plaintiff'' s  Attorney. 
[Office  address.*] 

[Verification  as  in  forms  Nos.  151,  etc.] 

'  The  same  form,  with  a  slight  varia-  '  See  note  2  to  form  No.  122. 

tion,  will  do  for  harboring  and  detain-  '  As  to  the  general  principles  upon 

ing   the   plaintiff's   child   or   servant,  which  the  action  can  be  niaiiilniiied, 

whereby  he  lo.ses  their  assistance  and  see  Rider  v.  White  (65  N.Y.,  54),  Lynch 

service.  v.  NcNally  (7^  N.  Y.,  347),  Muller  v. 


830  Forms  RELATiNa  to 

No.  925. 

Complaint  for  Keeping  a  Dog  Accustomed  to  Bite  Sheep  or 
otlier  Animals. 

As  in  lorni  No.  924  to  [*J,  and  from  thence  as  follows: 
To  hunt,  chase,  bite,  worry  and  kill  sheep  and  lambs,  which 
said  dog,  on  the  day  and  year  aforesaid,  and  on  divers  other 
days  and  times  between  that  day  and  the  commencement  of 
this  action,  did  hurt,  chase,  bite  and  worry  [one  hundred] 
sheep  and  lambs  of  the  plaintiff,   being  of   the  value  of 

dollars,  by  means  whereof  divers,  to  wit:    [hfty] 

of  the  said  sheep  and  lambs  of  the  said  plaintiff,  being  of 

the  value  of dollars,   then   and   there  died  and 

became  of  no  value  to  the  said  plaintiff,  and  the  residue  of 
the  said  sheep  and  lambs  of  the  said  plaintiff  being  also  of 
great  value,  were  then  and  there  greatly  terrified,  damaged 
and  injured,  and  rendered  of  no  use  or  value  to  the  said 
plaintiff,  to  the  damage  of  the  plaintiff  of  dollars. 

Wherefore  the  plaintiff  demands  judgment,  etc.  [prayer 
for  judgment].' 

F.  M.,  Plaintiff'' s  Attorney. 
[Office  address.'] 

[Verification  as  in  forms  Nos.  151,  etc.] 


No.  926. 
Complaint  for  Breach  of  Promise  to  Marry, 

[Title  of  cause.] 

The  plaintiff  complains  of  the  defendant  and  alleges,  that 

on  the day  of ,  18 — ,  in  consideration  that 

the  plaintiff,  who  was  then  sole  and  unmarried,  at  the  re- 
quest of  the  defendant,  would  marry  him  on  request,  the 
defendant  promised  the  x^laintiff  to  marry  the  plaintiff  on 
request ;  and  the  said  plaintiff,  confiding  in  the  said  promise 
and  undertaking  of  the  said  defendant,  has  always,  from 
thence  hitherto,  remained,  and  continued,  and  still  is,  sole 

McKesson  (73  N.  Y.,  195),  Van  Leuven  State  Rep.,  304),  Moynahan  v.  Wheeler 

V.  Like  (4  Denio,  127  ;  affM  S.  C,  1  (117  N.  Y.,  285),  Webber  v.  Hoag-  (28 

N.  Y.,    516),    Rogers   v.    Rogers    (26  State  Rep  ,  630).  Argersinger  v.  Levor 

Week.  Dig.,  236),  Putnam  v.  VVigg  (37  (54  Hun,  613),  Marsii  v.  Hand  (120  N. 


Forms  Relating  to 


820a 


Y.,  315),  Simpson  v.  Griggs  (58  Hun, 
393),  Jacoby  v.  Ockerhausen  (37  State 
Rep.,  710),  Milsheimer  v.  Sullivan  (27 
Pac.  R.,  1),  Malone  v.  Knowlton  (39 
State  Rep.,  901),  Kinmouth  v.  Mc- 
Dougall  (46  id.,  211),  Kesslerv.  Lock- 
wood  (42  id.,  563),  Hussey  v.  King-  (22 
Atl.  Rep.,  476),  Lettis  v.  Horning  (67 
Hun,  627).  Quilty  v.  Battie  (135  N.  Y., 
201),  Helmke  v.  Statler  (69  Hun,  107), 
Hubert  v.  Bedell  (50  State  Rep.,  251), 


Bundschuh  v.  Mayer  (81  Hun,  111), 
Hanke  V.  Friederich  (140  N.  Y.,  224), 
Jennings  v.  Burton  Co.  (73  Hun,  545), 
Farley  v.  Picard  (78  id.,  560),  Turner 
V.  Craighead  (83  id.,  112). 

*See  note  2  to  form  No.  122. 

*See  cases  cited  in  note  3  to  last 
form.  No.  924,  particularly  Van  Leu- 
ven  V.  Like  (1  N.  Y.,  515). 

"  See  note  2  to  form  No.  122. 


Actions  for  Wkongs.  821 

and  unmarried,  and  has  been,  [*]  and  still  is,  ready  and 
willing  to  marry  the  said  defendant ;  and  although  the  said 
plaintiff,  after  the  making  of  the  said  promise,  and  under- 
taking of  the  said  defendant,  to  wit :  on  the day 

of ,  18 — ,  and  at  divers  other  times,  requested  the 

said  defendant  to  marry  her,  the  said  plaintiff,  yet  the  said 
defendant,  not  regarding  his  said  promise  and  undertaking, 
did  not,  nor  would,  at  the  said  time  or  times  when  he  was 
so  requested  as  aforesaid,  or  at  any  time  before  or  after- 
wards, marry  her,  the  said  plaintiff,  but  has  hitherto  wholly 
neglected  and  refused  so  fo  do,  and  still  neglects  and  re- 
fuses so  to  do,  to  the  damage  of  the  plaintiff  of 

dollars. 

[Or  as  above  to  (*),  and  from  thence  as  follows :  Ready 
and  willing  to  marry  the  said  defendant ;  yet  the  said  de- 
fendant, not  regarding  his  said  promise  and  undertaking, 

and  after  the  making  of  the  same,  to  wit :  on  the 

day  of ,  18 — ,  wrongfully  and  injuriously  married 

a  certain  other  person,  to  wit:  one  C.  P.,  contrary  to  his 
said  last  promise  and  undertaking,  so  by  him  made  as  afore- 
said, to  the  damage  of  the  plaintiff  of dollars.'] 

Wherefore,  etc.  [prayer  for  judgment]. 

A.  M.,  Plaintiff' s  Attorney. 
[Office  address.^] 

[Verification  as  in  forms  Nos.  151,  etc.] 

*  The  form  of  the  complaint  will  Haviland  v.  Halsfeead  (34  id.,  643), 
vary  according-  to  the  promise,  whether  Fiebel  v.  Obersky  (note  n,  p.  403  ;  13 
it  be  to  marry  on  request,  in  a  reason-  Abb.  [N.  S.]),  Hamilton  v.  Lomax  (26 
able  time,  at  a  particular  time,  after  a  Barb.,  615  ;  S.  C,  6  Abb.,  142),  John- 
particular  event,  or  generally.  The  son  v.  Jenkins  (24  N.  Y.,  252),  Button 
material  facts  are,  that  in  coiisidera-  v.  McCauley  (5  Abb.  [N.  S.],  29  ;  revg 
tion  that  plaintiff  pi-omised  to  marry  S.  C,  38  Barb.,  413),  Palmer  v.  An- 
defendant,  defendant  pi-omised  to  drews  (7  Wend.,  142),  Thorn  v.  Knapp 
marry  plaintiff,  either  on  request  or  as  (42  N.  ¥.,474),  Kniffen  v.  McConnell 
the  cas-e  may  be  ;  a  statement  of  the  (30  id.,  2S5),  Cushman  v.  Burritt  (14 
request,  the  expiration  of  the  time,  or  Week.  Dig.,  59),  Campbell  v.  Ar- 
the  happening  of  the  event;  that  buckle  (21  State  Reji.,  412),  Cammerer 
jilaintiff  offered  to  marry  defendant,  v.  Muller  (38  iiL,  583).  Roe  v.  Doe  (33 
and  defendant's  ne<:lect  to  fulfill  his  id.,  41),  Kerns  v.  Hagenbuckle  (42 
promise.  (Voorhiea'  Code  [10th  ed-],  id..  210),  Yale  v.  Curti.ss  (71  Ilini, 
note  a,  p.  187  ;  citing  Buzzard  v.  430),  Nearing  v.  Van  Fleet  (id.,  137), 
Knapp,  12  How.,  504.)  Keegan  v.   Sage    (31  Abb.  N.  C.  54), 

See  also,   Honian  v.   Earl   (13  Abb.  Button  v.  Hibbanl  (82  Hun,  280). 
[N.  S.].    402;  aff'd   S.  C,    53    N.  Y.,         The   action   cannot  be     maintained 

HOT),  Wade    v.    Kalbtleisch    (15  A])b.  against  an  infant  (LeichtweiHS  v.  Triis- 

[N.  S.],  16  ;  aff'd  S.  C,  58  N.  Y.,  282),  kow,  21  Hun,   487,    and  cases  cited). 


822  Forms  Rp:lating  to 

No.  927. 
Complaint  for  False  Imprisoument. 

[Title  of  cause.] 

The  plaintiff  complains  of  the  defendant  and  alleges,  that 
the  defendant,  in  the  [city]  of ,  on  the 


day  of ^5  18—,  with  force  and  arms  assaulted  the 

plaintiff,  and  then  and  there  seized  and  laid  hold  of  the  said 
plaintiff,  and,  with  great  force  and  violence,  pulled  and 
dragged  about  the  said  plaintiff ;  and  also  then  and  there 
forced  and  compelled  the  said  plaintiff  to  go  from  and  out 
of  a  certain  dwelling-house,  situate  and  being  in  the  [city] 

of  ,  into  the  j)ublic   street,  and  then  and  there 

forced  and  compelled  him  to  go  in  and  along  divers  public 
streets,  to  a  certain  police  office,  situate  and  being  in  the 
said  [city]  and  then  and  there  imprisoned  the  plaintiff, 
and  kept  and  detained  him  in  prison  there,  without  any 
reasonable  or  probable  cause  whatsoever,  for  the  space  of 
[six  weeks]  then  next  following,  contrary  to  the  laws  and 
customs  of  this  State  and  against  the  will  of  the  said  plain- 
tiff, whereby  tlie  said  plaintiff  w^as  not  only  greatly  hurt, 
bruised  and  w^ounded,  but  w^as  also,  thereby  then  and  there 
greatly  exposed  and  injured  in  his  credit  and  circumstances, 
and  w^as  then  and  there  hindered  and  prevented  from  per- 
forming and  transacting  his  necessary  affairs  and  business, 

but  may  be  maintained  by  an  infant,  the    plaintiff    could  sue.      (Frost  v. 

(Willard  v.  Stone,  7  Cow.,  23;  Holt  v.  Knight,  L.  R.,  7  Ex.,  Ill;  rev'g  S.  C, 

Ward,  2  Strange,  93;  Hunt  v.  Peake,  L.  R.,  5  Ex.,  322.) 

5  Cow.,  475.)  The  parties  having  entered  into  an 

Where  the  defendant  has  married  agreement  to  marry  "in  the  fall,"  the 

another  woman,  a  request  need  not  be  defendant  announced  to  the  plaintiff, 

averred  (Caines  v.  Smith,  15  M.  &  W.,  in  October,  that  he  would  not  perform 

189),  and  this  is  so  where  the  promise  the  contract— Held,  that  an  action  com- 

is  to  marry  upon  request.     (Short  v.  menced  immediately  was  not  prema- 

Stone,  8  Q.  B.,  358.)  turely  brought.     (Burtis  v.  Thompson, 

'VYhere  the  defendant  promised  to  43  X.  Y.,  246.) 

marry  the  plaintiff  so  soon  as  his  (de-  The  action  cannot  be  revived  against 

fendant's)  father  should  die,  and  the  the  representatives  of  the  proraissor, 

defendant,    during   the  father's    life-  as  it  does  not  relate  to  property  iuter- 

time,  refused  absolutely  to  marry  the  ests  but  to  personal  injuries.     (Wade 

plaintiff— J7«W,reversingthe  judgment  v.  Kalbfleisch,  supra.) 

of  the  court  below,  that  a  breach  of  *  See  note  2  to  form  No.  122. 
contract  had  been  committed  on  which 


Actions  foe  Weongs. 


823 


by  him  during  that  time  to  be  performed  and  transacted, 
by  means  whereof  the  said  plaintiff  says  that  he  is  injured, 
and  has  sustained  damage  to  the  amount  of dol- 
lars, for  which  amount,  together  with  the  costs  of  this 
action,  plaintiff  demands  judgment  against  the  defendant.' 

M.  F,,  Plaintiff' s  Attorney. 
[Office  address.*] 
[Verification  as  in  forms  Nos.  161,  etc.] 


No.  928. 
Complaint  for  Assault  and  Battery. 

[Title  of  action.] 

The  plaintiff  complains  of  the  defendant  and  alleges,  that 
the  said  defendant,  at ,  on  the day 


of 


18 — ,  with  force  and  arms  assaulted  this  plaintiff, 
and  then  and  there,  with  force  and  violence,  seized  and  laid 
hold  of  the  said  j)laintiff  by  his  nose,  and  greatly  squeezed 
and  pulled  the  same,  and  then  and  there  with  a  certain  stick, 


'  The  material  alleg-ations  are  that 
the  defendant  imprisoned  the  plaintiff 
ag-ainst  his  will  and  without  authority 
of  law. 

See  Eddy  v.  Beach  (7  Abb.  Pr.,  17), 
Shaw  V.  Jayne  (4  How.  Pr.  119).  Exner 
V.  Exner  (2  Abb.  N.  C,  109).  Maloney 
V.  Dows  (15  How.  Pr.  261),  Bradner  v. 
Faulkner  (93  N.  Y.,  515),  Voltz  v. 
Blackmar  (64  id.,  440),  Coats  v. 
Darby  (2  id.,  517),  Burns  v.  Erben 
(40  id.,  463),  Thorne  v.  Turck  (94 
id.,  90),  Fay  v.  O'Neill  (36  id., 
11),  Mott  V.  Union  Bank  of  City  of 
New  York  (3S  id.,  IS),  Lynch  v. 
Metropolitan  R.  R.  Co.  (90  id.,  77), 
Miller  v.  Adams  (52  id.,  4(^9),  Gnille- 
aume  v.  Rowe  (94  id..  26S),  Hallock 
V.  Dominy  (69  i.l.,  238;  rev'g-  S.  C, 
7  Hun,  52),  Lanf,'e  v.  Benedict  (73  N. 
Y.,  12  ;  aft  'f,'  S.  C,  8  Hun,  302),Di]aen- 
bury  V.  Kieley  (8,')  N.  Y.,  383).  Schewe 
V.  Mulvey  (14  W.  Dig.,  384),  Hayes 
V.  Bowe  (65  How.  Pr.,  347),  Filzj)at- 
rick  V.  N.  Y.  an<l  M.  B.  R.  R.  Co.. (15 
Week.  Dig-.,  506),  Ai-teag-a  v.  Conner 
(88  N.  Y.,  403;  aff'g-  8.  C,  47  N.  Y. 
Super.  Ct.  494),  Neljenzahl  v.  Towns- 
end  (61  How.  Pr.  353;  S.  C,  12 
Week.  Dig.  51 1),  llnthei'f')rd  v.  Holmes 
(66  N.  Y.,  368;  afl'g  S.  C.  5  Hun, 
317).  Meyer  v.  Clark  (U  N.  Y.  Super. 
Ct.,  107),  Warner  v.  Perry  (14  Hun, 
337),  Blodgett  v.  Race  (13  Hun,  13J), 
Kenner  v.  Morrison  (12  id.,  204), 
Birdsall  v.  Fuller  (11  id.,  204;  Marks 
V.  Townsend  (97  N.  Y.,  590),  Fisher  v. 


Lang-bein  (103  id.,  84),  Hopner  v.  Mc- 
Gowan  (116  id.,  405),  Rosen  v.  Stein 
(54  Hun,  345),  Austin  v.  Vrooman  (128 
N.  Y„  229),  Carson  v.  Dessau  (36  State 
Rep.,  425),  Oppenheimer  v.  Manhattan 
R.  Co.  (45  id.,  134),  Sullivan  v.  New- 
man (43  id.,  893),  Brunner  v.  Downs 
(id.,  824),  Perry  v.  Sutley  (45  id.,  61), 
Kolzem  v.  Broadway,  etc.,  R.  Co.  (1 
Misc  ,  148),  Toomey  v.  Delaware,  L.  & 
W.  R.  Co.  (4  Misc.,  392),  Wilson  v. 
Manhattan  R,  Co.  (2  id.,  127),  Hewitt 
V.  Newburger  (141  N.  Y.,  538;  rev'g- 
S.  C,  66  Hun,  235),  Atwood  v.  Beirne 
(73  Hun,  547),  Callahan  v.  Searles  (78 
id.,  238),  Pastor  v.  Regan  (9  Misc., 
547),  Carson  v.  Desseau  (142  N.  Y., 
445),  De  Matties  v.  Le  Maida  (74  Hun, 
432),  Swart  v.  Rickard  (id.,  339), 
Kreiser  v.  Scofield  (10  Misc.,  350; 
rev'g-  S.  C,  9  id.,  200),  Waj-ren  v. 
Dennett  (13  id.,  329).  Cuniffv.  Beecher 
(84  Hun,  131).  Parks  v.  Gilligau  (14 
Mi.sc,  121),  for  cases  in  which  the  ac- 
tion may.be  maintained  and  as  to  plead- 
ings, evidence,  damages,  etc.,  therein. 

An  agreement  not  to  sue  for  false 
imprisoiiineiit,  g-iven  as  a  condition  of 
release  from  arrest,  is  voi<l  for  dui-ess. 
(Gnilleauiiie  v.  Rowe,  94  N.V.,  268.) 

The  light  of  action  foi-  a  false  im- 
l)riHonmeiit  begins  when  the  actual 
impriHonnient  ceases.  (Van  Ingen  v. 
Snyder,  24  Hun,  81;  H.  C,  11  Week. 
Dig.,  370.) 

*  See  note  2  to  form  No.  122. 


824  Forms  Relating  to 

and  with  his  fists,  gave  and  struck  the  plaintiff  a  great  many 
violent  blows  and  strokes  on  and  about  divers  i^arts  of  his 
body  ;  and  also  tlien  and  there,  with  great  lorce  and  vio- 
lence, shook  and  pulled  about  the  said  plaintiff,  and  cast 
{ind  thivw  the  said  plaintiff  down  to  and  upon  the  ground, 
and  then  and  there  violontly  kicked  the  said  plaintiff",  and 
gave  and  struck  him  a  great  many  other  blows  and  strokes  ; 
and  also  then  and  there,  with  great  force  and  violence,  rent, 
tore  and  damaged  the  clothes  and  wearing  apparel  of  the 
said  plaintiff,  to  Avit :  one  coat,  waistcoat  and  pantaloons  of 
great  value,  to  wit :  of  the  value  of  twenty  dollars,  which 
clothes  the  said  plaintiff  then  and  there  wore  and  was 
clothed  with  ;  by  means  of  which  said  several  premises  the 
said  plaintiff  was  then  and  there  greatly  hurt,  bruised  and 
wounded,  and  became  and  was  sick,  sore  and  lame,  and  so 
remained  and  continued  for  the  space  of  [six  weeks]  then 
next  following,  during  all  of  which  time  the  plaintiff  theieby 
suffered  and  underwent  great  pain,  and  was  hindered  and 
prevented  from  performing  and  transacting  his  necessary 
affairs  and  business,  by  him  during  that  time  to  be  per- 
formed and  transacted,  and  also  thereby  the  said  plaintiff 
was  forced  and  obliged  to,  and  necessarily  did  pay,  lay  out 
and  expend,  a  large  sum  in  money,  in  and  about  endeavor- 
ing to  be  cured  of  the  bruises,  wounds,  sickness,  soreness, 
lameness  and  disorder  aforesaid,  occasioned  as  aforesaid,  to 

the  damage  of  the  plaintiff  of dollars,  for  which 

amount  plaintiff  demands  judgment  against  the  defendant.' 

W.  F.,  Plaintiff's  Attoriiey. 
[Office  address/] 
[Verification  as  in  forms  Nos.  151,  etc.] 


*  The  material  allegation  is,  that  the  A  complaint  in  an  action  by  afemale, 

defendant  assaulted  and  beat  jilaintiflF.  alleged  "  that  the  defendant,  with  force 

The  complaint  may  state  the  busi-  and   arms,    ill-treated    and    made   an 

nes3  and  employment  of  the  parties,  assault  upon  her,  and  then  and  there 

and  the  objectandintentof  theassanlt,  debauched   and   carnally  knew  her." 

together  with   the   statement   that    it  iTe^cZ,  upon  demurrer,  a  sufficient  aver- 

caused   the    jilaintiif  to  be   I'idiculed,  ment  of  an  assault  and  battery.  (Koe- 

etc,  and  this  held  not  to  be  immaterial  nig  v.  Nott,  2  Hilt.,  323;  S.  C,  8  Abb., 

or  irrelevant.     Although  not  essential  384).     See,   also,    Stevens   v.    Rodger 

to  enable  the  plaintiff  to  maintain  his  (25  Hun,  54). 

action,    the    allegations   are   material  See,  also,  Johnson  v.  McConnel  (15 

upon  the  question  of  damages,  and  may  Hun,  293),  Geraty  v.  Stern  (30  Hun, 

beprovetl.  (Rootv.Foster,  9  How.,37.)  426),  Labar  v.  Koplin  (4  N.  Y.,  547), 

See,  also,  Gilbert  v.  Rounds  (14  Corning  v.  Corning  (6  N.  Y.,  97),  Jew- 
How.,  46),  Brewer  v.  Temple  (15  How.,  ett  v.  Banning  (21  N.  Y.,  27),  Werely 
286).  V.  Persons  (28  N.Y.,  344),  "Wall  v.  Lee 


Actions  for  Wrongs. 

No.  929. 
Another  form  of  Complaint  for  Assault  and  Battery. 

[Title  of  cause.] 

The  plaintiff  complains  of  the  defendant  and  alleges,  that 

the  said  defendant,  heretofore  and  on  the day  of 

,  18 — ,  at ,  with  force  and  arms,  made  an 

assault  on  the  plaintiff,  and  then  and  there  beat,  bruised, 
wounded  and  ill-treated  him,  to  the  damage  of  the  plaintiff 

of dollars,  for  which,  etc.  [prayer  for  Judgment]. 

[Signature,  etc.,  as  in  last  form.] 


No.  930. 
Answer  that  Plaintiff  Committed  first  Assault. 

[Title  of  cause.] 

The  defendant  [further]  answering  the  complaint  says, 
that  said  plaintiff  ought  not  to  have  or  maintain  his  action 
against  him,  because  the  said  plaintiff,  just  before  the  time 
in  the  said  complaint  mentioned,  with  force  and  arms,  made 
an  assault  upon  [*]  him,  the  said  defendant,  and  would  then 
and  there  have  beaten,  bruised  and  ill-treated  the  said  de- 
fendant if  he  had  not  immediately  defended  himself  against 
the  said  plaintiff  ;  wherefore  he,  the  said  defendant,  did  de- 
fend himself  against  the  said  plaintiff,  as  he  lawfully  might, 
for  the  cause  aforesaid,  and,  in  so  doing,  did  necessarily 
and  unavoidably,  a  little  bruise,  wound  and  ill-treat  the 
said  plaintiff,  and  rend,  tear,  damage  and  spoil  the  said 
wearing  ai)parel  in  the  said  complaint  mentioned,  doing  no 
unnecessary  damage  to  the  said  plaintiff  upon  the  occasion 
aforesaid,  and  if  any  hurt  or  damage  then  and  there  hap- 

(3i  N.  Y.,  141),  Waffle  v.  Dillenback  Howe  v.  Oldham  (52  State  Rep.,  734). 

(38  N.  Y.,  53),  Wood   v.   Phillips  (43  Townsend   v.    Stewart    (53   id.,    147), 

N.  Y.,  162),  Bliss  v.   Johnson  (73  N.  Liebstadter  v.    Federgreen   (60  Iliiii, 

Y.,  520),  Kiff  V.  Yournar.s   (8tj   N.  Y.,  24.'>),  O'Connell  v.  Samutd  (81  id.,  357), 

324).  Langdon  v.  Guy  (91  N  Y.,  660),  Conway  v.  Carpenter  (73  i.l.,  540;  80 

C(  mstock   V.    Dodg-e   (43   How.,    97),  id.,  428),  Watson  v.  Osweg-o  Street  R. 

Priest  V.  H.  R.  R.  R.  Co.  (10  Abh.  [N.  Co.  (7  Mi'so.,  562),  Kostera  v.  Brooklyn 

8.].  60;  S.  C.,2  Sweeney,  595;  atF'd  65  B.,  etc.,  R.  Co.  (10  id.,    18),    (Caldwell 

N.  Y.,589);  McMillunv.  Cn)iiin(75N.  v.  C.  P.  N.  &  E.   R.   Co.    (7   id.,    67), 

Y.,  474),  O'Donneli  v.  Mclntyie  (No.  2)  Dean  v.  Raplee  (75  Hun,  389  ;  iiiYW  H. 

(37  Mun,  623),    N'-winan  v.    Marshall  C,  145  N.  Y.,  319),  Mori,'an  v.  Powets 

(52  Hui)er.  Ct  ,   102),    Bristor   v.    Burr  (S3   Hun,  29.S),    Isaacs  v.    Flahivo(14 

(120  JSf.    Y.,  427),  Kain  V.  Larkin   (56  Misc.,  249),  for  recent  aiithorilies  as  to 

Hun,    79),    Morg-an  v.    N.  Y.  Central,  this  action, 
etc.,   R.    Co.    (23  N.  Y.   Supp.,    197),         '  See  note  2  to  form  No.  122. 


826  Forms  E,elating  to 

pened  to  the  said  plaintilf,  or  to  his  said  wearing  apparel, 
the  same  was  occasioned  by  said  assault  so  made  by  the 
said  plaintilf  on  him,  the  said  defendant,  and  the  neces- 
sary and  lawful  defense  of  him,  the  said  defendant,  against 
the  said  plaintiff,  which  are  the  same  supposed  trespasses 
complained  of  by  the  said  plaintiff  against  this  defendant.' 

P.  E,.,  Defendant  s  Attorney. 
[Office  address."] 


No.  931. 
Answer  that  Defendant  was  Preserving  the  Peace. 

As  in  last  form  No.  980  to  [*],  and  from  thence  as  fol- 
lows :  One  M.  B.,  and  was  then  and  there  at  the  same  time 
beating  and  ill-treating  the  said  M.  B.,  in  breach  of  the 
peace  of  the  j^eople  of  the  State  of  New  York  ;  wherefore 
the  said  defendant,  at  the  said  time  to  preserve  the  peace  of 
the  said  people  of  the  State  of  New  York,  and  to  part  the 
said  plaintiff  from,  and  to  prevent  him  from,  further  beating 
and  ill-treating  the  said  M.  B.,  gently  laid  his  hands  uj)on 
the  said  plaintiff',  as  he  lawfully  might,  for  the  cause  afore- 
said, which  are  the  same  assaulting,  beating  and  ill-treating 
the  said  plaintiff  has  set  forth  in  his  complaint  in  this 
action.' 

[Signature,  etc.,  as  in  last  form.] 

[Verification  as  in  forms  Nos,  151,  etc.] 


No.  932. 

Complaint  for  Maliciously  Suing  Plaintiff  Six  Times 
Before  a  Justice. 

[Title  of  cause.] 

The  plaintiff  complains  of  the  defendant  and  alleges,  that 
on  the day  of ,  18—,  [f]  the  said  defend- 
ant, not  having  any  just  or  probable  cause  of  action  against 
the  said  plaintiff,  did  then  and  there  wrongfully,  willfully 

'  That  the  plea  may  be  interposed  ^  That   this  defense  may  be  inter- 

with  a  general  denial,  see  Lansingh  v.  posed  with  a  general  denial,  see  Lans- 

Parker  (9  How.  Pr. ,  288).  ingh  v.  Parker  (9  How.  Pr.,  288).    See, 

«  See  note  2  to  form  No.  122.  also,  16  Abb.  Pr.,  235. 


Actions  for  Wrongs.  827 

and  maliciously  cause  the  said  plaintiff  to  be  summoned  to 
appear  at,  etc.,  on,  etc.,  before  F.  G.,  Esq.,  one  of  the  justices 
of,  etc.,  to  answer,  etc.,  [as  in  summons],  and  at  which  day 
and  place  the  said  plaintiff  did  duly  appear  to  answer  the 
said  defendant  before  the  said  justice  [he,  the  said  plaintiff, 
being  obliged  to  pay  and  did  pay  the  sum  of dol- 
lars for  his  necessary  expenses  in  traveling  from  his  home, 
to  wit!  at,  etc.,  to  the  place  af)pointed  by  the  said  justice 
for  his  appearance  as  aforesaid,  being  the  distance  of  (four- 
teen) miles,  and  being  obliged  also  to  pay  a  large  sum  of 
money,  to  wit :  the  sum  of  (five)  dollars,  for'  retaining 
counsel  to  defend  him  therein],  and  the  said  defendant  did 
not  appear,  but  suffered  the  same  suit  to  be  discontinued 
[or  show  in  what  other  manner  the  case  was  disposed  of], 
he,  the  said  defendant,  well  knowing  that  he  had  no  just  or 
probable  cause  of  action  against  the  said  plaintiff,  [f]  and 

afterwards,  on  the day  of ,  18 —  [insert 

from  (t)  to  (t),  and  so  repeat  the  different  summonses  ac- 
cording to  the  facts],  all  which  premises  are  to  the  said 

plaintiff's  damage  of  dollars,  for  which  amount 

the  plaintiff  demands  judgment  against  the  defendant,  with 

costs  of  this  action.' 

M.  F.,  Plalntifs  Attorney. 

[Office  address.'] 

'See   Pangburn  v.   Bull  (1  Wend.,  (20  id.,  446),  as  to  the  action   for  ma- 

345),  Hasten  v.  Deyo  (2  id.,  424),  Gor-  licioua    prosecution    generally.      See 

ton  V.  De  Angelis  (6  id.,  418),  Hall  v.  also   Avery  v.  Blair   (21   W.  D.,  178; 

Suydam  (6  Barb.,  83),  Sheldon  v.  Car-  20  Abb.  N.  C,  259  note;   Dorendinger 

penter   (4   N.  Y.,    579),    Bulkeley  v.  v.  'IVchechtelin  (12   Daly,  34),  Young 

Keteltas  (6  id.,  384).  Beason  v.  South-  v.  Lyall   (23  State  Rep.,  215),  Gierhon 

ard  (10  id.,  236),    McKown  v.  Hunter  v.  Ludlow   (6   N.  Y.  Supp..  Ill),  Mo- 

(30  id..  625),    Rockwell   v.  Brown  (36  har  v.  Simmons   (3   State   Rep.,  293), 

id.,  207),  Burns  v.  Erben  (40  id.,  463),  Jones   v.  McCaddin    (105  N.  Y.,  641  ; 

Carl  V.  Ayers  (53  id.,  14),  Fainam  v.  aflF'g  S.  C,  21  Week.    Dig..  53),  Ing- 

Feeley  (56  id.,  451),    Heyne  v.  Blair  ram  v.  R(H>t  (51  Hun,  238),  Maiks   v. 

(62  id.,  19).    Dennis  V,    Ryan    (65  id.,  Townsend    ('.t7  N.  Y.,  590),   Gallagher 

385;   aff'g  S.    C,    5    Lana.,    350;    63  v.    Stoddard    (47  id.,    101),  Collins  v. 

Barb.,  145),    Fagnan  v.   Knox    (66  N.  Manning  (1  State  Rep.,  193),    Silkman 

Y.,    525;  S.C,    1  Abt).   N.    C,   246),  v.  Crosby  (14  id.,  563),    Waps    v.  Ste- 

Thaule   v.  Krekeler   (81    N.  Y.;  428),  vens  (6  N.  Y.  Supp..  131 ;  afT'd  S.  C, 

Neil  V.  Thorn    (88   id.,    270;rev'gS.  128   id.,     123),     Eldred    v.    Fowdney 

C,  17  Hun,  144),  Bradnerv.  Faulkner  (16   id..    83),    Hazzard  v.  Flury    (120 

(93    N.  Y.,    515),    Smith  v.  Smith  (26  id.,  223),  Collins  v.  Maiming  (32  State 

Hun,   573),  Binirham  v.  Bec.kwlth   (19  Rep,   998)  Aiiders(m  v.  How  (116  N. 

Week.  Dig.,  422),  Thomprion  v.  Lum-  Y.,    336).    Hall  v.  K.-hoe  (28  HU\.W.  R.. 

ley    (1  Abb.  N.  C,  254),    Blodgett  v.  357),   English  v.  Major  (59  Hun.  317), 

Race  (18  Hun,  132),   Barber  v.  Gould  MoUoy  v.  Long  Island   R.  Co.  (59  i.i.. 


828  Forms  Relating  to 

No.  983. 

Complaint  for  Maliciously  Causing  the  Indictment  of  the 

Plaintiff. 

[Title  of  cause.] 

Tlie  complaint  of  the  above  named  plaintiff  respectfully 

shows,  that  the  defendant  heretofore,  and  on  the 

day  of ,  18 — ,  contriving  and  maliciously  intending 

to  injure  the  plaintiff,  and  to  cause  him  to  be  imprisoned 
and  kept  and  detained  in  i)i'ison,  and  to  put  him  to  great 
expense,  and  to  vex,  harass  and  oppress  and  wholly  ruin 
the  plaintiff,  falsely  and  maliciously,  and,  without  any- 
reasonable  or  probable  cause  whatsoever,  indicted,  and 
caused  and  jDrocured  to  be  indicted,  the  said  i)laintiff,  by  a 
grand  jury  at  a  [court  of  oyer  and  terminer],  held  at  the 

of ,  in  and  for  the  county  of ,  on 

the  day  last  aforesaid,  for  the  [state  offense  alleged  in  indict- 
ment], and  falsely  and  maliciously,  and  without  any  reasona- 
ble or  probable  cause  whatever,  prosecuted,  and  caused  and 
procured  to  be  prosecuted,  the  said  indictment  against  tlie 
said  plaintiff,  at  [a  court  of  oyer  and  terminer],  held  at  the 

of ,  in  and  for  the  county  of ,  on 

the day  of ,  18 — ,  until  the  said  plaintiff 

afterwards,  to  wit,  at  the  [said  court  of  oyer  and  terminer], 
was,  in  due  manner,  and  according  to  due  course  of  law, 
by  a  jurj^  of  the  said  county,  acquitted  of  the  premises  in 
the  said  indictment  charged  upon  him,  the  said  plaintiff,  in 
manner  aforesaid  ;  whereupon  it  was  then  and  there  consid- 
ered, by  the  said  court,  that  the  said  plaintiff"  of  the  premi- 
ses in  the  said  indictment  specified,  should  be  dischai'ged, 
and  should  go  without  day  [as  by  the  record  and  proceed- 
ings thereof,  remaining  in  the  said  court,  will  more  fully 
appear]. 

That  by  means  of  the  said  premises  he,  the  said  plaintiff, 
hath  been  forced  and  obliged  to  undergo,  and  hath  under- 
gone, many  great  troubles  and  labors  both  of  body  and 
mind,  and  been  obliged  to  lay  out  and  expend  divers  large 

424),Bandellv.May(39  state  Rep.,432),  v.  Gibson  (43  id.,  332),   Brounatein  v. 

Eng-lish  V.  Major  (36  id.,  09),  Robbins  Wile   (47  id.,  788),    Farreil  v,  Fried- 

V.  Robbins  (39  id.,  453  ;    affVl  133  N.  lander  (63   Hun,  2r)4),  Wrench  v.  Sa- 

Y.,    597),    Humphreys   v.    Prudential  menfeld    (47  State  Rep.,  378),   Oppen- 

Ins.  Co.  (41  State  Rep  ,  453),  Sprague  heim   v.    Manhattan   R.    Co.    (45  id., 


Forms  Relating  to 


828a 


134),  Brounstein  v.  Sahlim  (65  Hun, 
365),  Streahan  v.  Nat.  Steamship  Co. 
(66  id.,  48),  Sales  v.  Hoetzel  (48  State 
Rep.,  205),  Toomey  v.  Delaware,  L. 
and  W.  R.  Co.  (2  Misc.,  82),  Grout  v. 
Cottrell  (50  State  Rep.,  829),  Fergu- 
son V.  Arnow  (142  N.  Y.,  530;  rev'g 
S.  C,  50  State  Rep.,  852),  Witham  v. 
Thomas  (50  State  Rep.,  884),  Willard 
V.  Holmes  and  o'rs  (142  N.  Y.,  492  ; 
rev'g  S.  C,  2  Misc.,  303),  Stevens  v. 
Met.  Life  Ins.  Co.  (id.,  584),  Howe  v. 
OLiham  (69  Hun,  57),  Kline  v.  Hib- 
bard  (80  Hun,  50),  Johnson  v.  Gird- 
wooti  (7  Misc.,  651),  De  Matteis  v.  La 
Maida  (74  id.,  432).  Grant  v.  Cottrell 
(143  N.  Y.,  677),  Purcell  v.  Long 
Island  City  (84  Hun,  439). 

The  material  allegations  are  a  pros- 
ecution  by  the   defendant ;  its  termi- 


nation favorably  to  the  plaintiff;  mal- 
ice and  want  of  probable  cause. 

Under  section  484,  Ci-de  Civ.  Pro., 
subd.  2,  a  cause  of  action  for  false  im- 
prisonment and  for  malicious  prose- 
cution can  be  united  in  the  same  com- 
plaint. (Haight  V.  Webster,  18  Week. 
Dig.,  108;  97  N.  Y.,  590.) 

That  an  action  lies  in  damages  for 
the  malicious  jirosecution  of  a  civil 
suit,  see  also  Easton  v.  Bank  of  Stock- 
ton (Sup.  Ct.  of  Cal.,  Nov.,  1884  [19 
Rep.,  5J ;  cited  31  Alb.  Law  Jour.,  63), 
and  McCardle  v.  McGinley  (86  Ind., 
538;  S.  C,  44  Am.  Rep.,  343,  346); 
contra,  Muldoon  v.  Rickey  (103  Penn. 
St.,  110),  there  referred  to.  See  also 
Willard  v.  Holmes,  Booth  &  Haydens 
(142  N.  Y.,  492,  495;  S.  C,  2  Misc.. 
303,  304). 

*  See  note  2  to  form  No.  122, 


Actions  for  Wrongs.  829 

sums  of  money,  in  the  whole  amounting  to  the  sum  of 

— dollars,  in  and  about  the  defending  himself  in  the 

premises,  and  the  manifestation  of  his  innocence  thereim ; 
and  hath  been  imprisoned^  and  kept  and  detained  in  prison, 

for  a  great  length  of  time,  to  wit,  for  the  sjDace  of 

days ;  and  the  said  plaintiff  was  also,  by  means  of  the 
l^remises,  greatly  hindered  and  prevented  from  transacting 
his  necessary  and  lawful  affairs  and  business  for  divers  long 
spaces  of  time,  and  hath  been  and  is  otherwise  greatly  in- 
jured and  damnified,  and  very  much  impoverished,  to  wit : 

in  the  sum  of dollars,  for  which  amount,  with  the 

costs  of  this  action,  plaintiff  demands  judgment  against  the 
defendant.' 

M.  F.,  Plaintiff's  Attorney. 
[Office  address."] 


No.  934. 

Complaint  for  Maliciously  Causing  the  Arrest  of  Plaintiff 
on  a  Charge  of  Stealing. 

[Title  of  cause.  ] 

The  plaintiff  alleges  that  he  is  a  resident  of  the 

of ,  and  a by  occupation. 

That  on  the day  of ,  18—,  he  went  on  a 

pleasure  trip  to  Coney  Island,  and  when  on  his  return  on 
the  steamer  Chicoi^ee,  shortly  after  leaving  Coney  Island, 
the  defendant  charged  him  [plaintiff],  in  the  presence  and 
hearing  of  a  large  concourse  of  passengers,  with  stealing,  or 
attempting  to  steal,  his  breast  pin,  and  caused  the  plaintiff 
to  be  arrested  and  taken  into  custody  by  a  j)olice  officer  on 
board  the  boat,  and  caused  him  to  be  so  kept  in  custody 
and  subject  to  the  mortification  of  being  pointed  out  and 
stared  at  by  a  large  number  of  passengers  from  New  York 
city  and  Brooklyn  as  a  thief,  for  nearly  an  hour  before  the 
boat  reached  the  dock  at  Fulton  ferry,  when  plaintiff,  by 
direction  of  the  defendant,  was  taken,  by  the  policeman  to 
a  station-house  in  Washington  street,  Brooklyn,  accom- 
panied by  defendant  as  complainant,  and  where  defendant 
made  a  complaint  against  ])laintiff  charging  him,  plaintiff, 

'  See  note  1  to  last  form  No.  932,  «  Seo  note  2  to  form  No,  122. 


830  Forms  Relating  to 

witli  having  committed  a  larceny  from  his,  the  defendant's, 
person,  and  with  having  stolen  a  diamond  pin  from  his 
person,  on  whicli  cliarge  this  plaintiff  was  committed  for 
examination  until  the  Monday  fallowing  [this  having 
occurred  on   Saturday  afternoon],   and   tnis    plaintiff  was 

kept  in  the  station-house  until  Monday,  the day 

of ,  18 — ,  when  he  was  taken  before  Justice  Corn- 
wall, a  criminal  magistrate  in  a  police  court,  and  an  exami- 
nation was  had  and  he  was  honorably  discharged. 

That  on  the  hearing  before  the  magistrate  the  defendant 
had  the  pin  in  nis  bosom,  and  then  pressed  only  a  charge 
of  an  attempt  to  steal  the  pin,  though  this  plaintiff  charges 
that  when  he  was  arrested,  and  when  committed,  defend- 
ant' s  charge  was  that  of  stealing  the  pin. 

The  plaintiff  further  says,  that  he  w^as  not  guilty  of  steal- 
ing, or  attempting  to  steal,  the  defendant's  pin,  and  was 
never  guilty  of  any  crime  whatever,  and  up  to  that  time 
had  always  been  esteemed  a  good  and  worthy  citizen  and 
respected  by  all  his  neighbors. 

The  plaintiff  further  says,  that  the  charge  made  by  the 
defendant,  and  the  arrest  and  imprisonment  was  made  and 
caused  without  any  i)robable  cause  to  sus^Dect  the  plaintiff 
of  either  stealing  or  attempting  to  steal  this  pin,  and  the 
arrest,  committal  and  detention  were  malicious. 

That  plaintiff  suffered  great  mental  agony  and  physical 
discomfort,  and  asks  judgment  against  defendant  for  $5,000 

damages  and  costs  of  suit.' 

E.  M.,  Plaintiff  "^  s  Attorney. 
[Office  address.'] 
[Verification  as  in  forms  Nos.  151,  etc.] 


No.  935. 

Complaint  for  a  Fraudulent  Concealment  on  the  Sale  of  a 

Horse. 

[Title  of  cause.] 

The  complaint  of  the  above  named  plaintiff  respectfully 

'  See  note  1  to  form  No.  932.     This        ^  See  note  2  to  f»rm  No.  123. 
complaint  is  from  the  case  of  Carl  v. 
Ayers  (53N.  Y.,  14). 


Actions  for  Wrongs.                        831 
shows,  that  on  the day  of ,  18 — ,  at , 


the  said  plaintiff  bought  of  the  said  defendant  his  certain 

horse  for  the  sum  of dollars,  then  paid  therefor  ; 

and  the  said  defendant,  well  knowing  the  said  horse  to 
have  the  heaves,  which  fact  was  then  unknown  to  the 
said  plaintiff,  he,  the  said  defendant,  then  intentionally, 
falsely  and  fraudulently  concealed  the  said  fact  from  the 
knowledge  of  the  said  plaintiff,  and  thereby  sold  the  said 
horse  to  him  for  the  price  aforesaid  ;  and  the  said  horse  of 
the  said  defendant,  in  fact,  at  the  time  of  the  said  sale 
thereof,  had  the  heaves,  to  the  knowledge  of  the  said  de 
fendant,  and  was  thereby  rendered,  and  hath  since  so  con- 
tinued, utterly  unfit  for  use. 

Wherefore  the  plaintiff  alleges  that  he  has  been  damaged 

to  the  amount  of dollars,  for  which  amount,  with 

the  costs  of  this  action,  he  demands  judgment  against  the 
defendant.' 

M.  F.,  Plaintiff's  Attorney. 
[Office  address.'] 

[Verification  as  in  forms  Nos.  151,  etc.] 


No.  936. 
Complaint  for  a  False  Warranty  of  a  Horse. 

[Title  of  cause.] 

The  complaint  of  the  above  named  plaintiff  respectfully 

shows,  that  the  said  plaintiff  heretofore,  to  wit :  on  the 

day  of ,  18 — ,  at ,  at  the  special  instance  and 

request  of  the  said  defendant,  bargained  with  the  said  de- 
fendant to  buy  of  liim,  the  said  defendant,  a  certain  horse, 
at  and  for  a  certain  price  or  sum  of  money,  to  wit,  the  sum  of 

dollars  ;  and  the  said  defendant  by  then  and  there 

falsely  and  fiJiudulently  warranting  the  said  horse  to  be 
sound  and  quiet  in  harness,  then  and  there  sold  the  said 

'  The  principle  is  well  settled  that,  is  not  enough  that  a  vendor  tells  the 

■where  a  vendor  of  a  chattel  is  guilty  of  tnAli  in  respect  to  the  article  sold,  as 

a  fraudulent  concealment  of  malerial  far  as  he  goes.      ITe  should  tell  the 

facts  in  relation  t«  the  sale,  to  the  in-  whole  truth  fully  and  fairly.     (Nickh^y 

jury  of  flio  vendee,  an  action  at  law  is  v.  Tlionias,  22  Barh.,  fire.) 
maintainalile  to  recover  damages.     It        *  See  note  2  to  form  No.  123. 


832  Forms  Relating  to 

horse  to  the  said  plaintiff  for  the  said  sum  of dollars, 

then  and  there  paid  by  the  said  plainfilT  to  the  said  defend- 
ant for  tlie  same,  whereas,  in  truth  and  in  fact,  the  said  horse 
was,  at  the  time  of  the  said  warranty  and  the  sale  thereof, 
unsteady,  restive  and  ungovernable  in  harness,  and  hath, 
from  thence  hitherto,  so  remained  and  continued  ;  and  the 
said  plaintiff,  in  fact,  saith  that  the  said  defendant,  by  means 
of  the  premises,  falsel}"  and  fraudulently  deceived  him,  the 
said  j)laintiff,  on  the  sale  of  the  said  horse  as  aforesaid,  and 
thereby  the  said  horse  afterwards,  to  wit :  on,  etc.,  not  only 
became  of  no  use  or  value  to  the  said  plaintiff,  but  also  then 
and  there  greatly  kicked,  hurt,  injured  and  spoiled  a  certain 
other  horse  of  him,  the  said  plaintiff,  of  great  value,  to  wit : 

of  the  value  of dollars  ;  and  thereby  also  the  said 

plaintiff  was  then  and  there  put  to  great  expense  of  his 
moneys,  in  the  whole  amounting  to  a  large  sum  of  money, 
to  wit :  the  sum  of dollars,  in  and  about  the  feed- 
ing and  taking  care  of,  and  selling  and  disposing  of,  the 
said  horse. 

Wherefore,  etc.  [prayer  for  judgment].' 

M.  F.,  Plaintiff '  s  Attorney . 
[Office  address.'] 

[Verification  as  in  forms  Nos.  151,  etc.] 


No.  937. 

Complaint  on  a  Sale  with  all  Faults,  where  Fraudulent 
Means  are  Used  to  Prevent  the  Purchaser  from  Dis- 
covering Defects,  etc. 

[Title  of  cause.] 

The  plaintiff  complains  against  the  defendant  and  alleges, 
that  on  the day  of ,  18 — ,  the  said  defend- 

•  The  material  allegations  are,  the  ranty,  the  plaintiff  proved  a  warranty 

warranty,  that  it  was  false,  and  that  and  breach  thereof,  but  gave  no  evi- 

the    purchaser  was   deceived    by    it.  dence  tending  to  show  fraud.     Held 

(Holman  v.  Dord,  12  Barb.,  336,  339.)  (Lott,  Ch.,  Com.,  dissenting),  that  the 

There   need  be  no   allegation   that  gravamen  of  the  action  was  fraud,  not 

the  defendant  knew  the  warranty  was  a  breach   of   warranty,  and   plaintiff 

false.     (Id.)  could  not  recover  upon  proof  of  the 

Under  a  complaint  for  a  false  war-  latter  only.     (Ross  v.  Mather,  51  N. 


Actions  for  Wrongs.  833 

ant  was  possessed  of  a  certain  horse,  and  which  said  horse 
before  and  at  the  time  of  the  sale  thereof  to  the  said  plain- 
tiff, as  hereinafter  mentioned,  had  contracted  a  certain 
malady  and  unsoundness,  rendering  the  said  horse  of  no 
use  or  value,  to  wit :  the  glanders,  and  which  the  said  de- 
fendant then  well  knew  ;  yet  the  said  defendant  intending 
to  defraud  the  said  plaintiff  in  this  behalf,  by  then  falsely, 
fraudulently  and  deceitfully  using  certain  false  and  fraudu- 
lent acts,  contrivances  and  applications  to  make  the  said 
horse  appear  to  be  a  sound  horse,  and  not  glandered,  and 
by  suppressing  the  appearance  of  the  said  glanders,  then 
sold  the  said  horse,  so  being  unsound  and  glandered,  as 
aforesaid,  to  the  said  plaintiff,  the  said  plaintiff  to  risk  the 
soundness  of  the  said  horse,  and  the  said  plaintiff,  not 
knowing  that  the  said  horse  was  so  unsound  and  glandered, 
was  thereby  induced  to  buy,  and  then  bought,  the  said 
horse  of  the  said  defendant,  and  then  paid  to  him  a  large 

sum,  to  wit : dollars,  as  and  for  the  price  and  value 

of  the  said  horse,  and  was  also  thereby  induced  to  agree 
with  the  said  defendant  to  risk  the  soundness  of  the  said 
horse  as  aforesaid ;  whereas,  in  truth  and  in  fact,  the  said 
horse,  at  the  time  of  the  said  sale  as  aforesaid,  was  unsound 
and  glandered  and  of  no  use  or  value  whatever. 
Wherefore,  etc.  [prayer  for  judgment] 

M,  F.,  Plaintiff''  s  Attorney. 
[Office  address.'] 


No.  938. 

Complaint  for  Falsely  and   Fraudulently  Affirming  that 
He,  the  Defendant,  Owned  the  Horse. 

[Title  of  cause.  ] 

The  plaintiff  complains  of  the  defendant  and  alleges,  that 

Y.,  108;  diaapprovint,',  Williamson  v.  To  sustain  an  action  upon  a  war- 
Allison,  2  East,  440.)  See,  also.  Bo-  rarity,  it  ia  not  necessary  that  all  the 
f^ar.lua  v.  N.  Y.  Liffi  Ins.  Co.  (101  N.  represeiitationamailt!  by  the  defendant 
Y.,  328,  34::!),  Bosworth  v.  Hig'f^-ins  (2tj  should  he  fulae  or  all  actionable.  If 
State  R.,  474)  ;  2}  Abb.  N.  C,  9;^  7iw^e.  anv  jmrt  of  the  representations  are 
'J'he  existence  and  terms  of  the  wai-  actionable  it  will  be  sufHcient.  (Sweet 
ranty,  aa  niateriul  and  traversal)le  v.  Bradley,  24  Barb.,  r)41).) 
facts,  must  bn  allei,'ed  in  thecompluint.  '  See  note  2  to  form  No.  122. 
(Prentice  v.  Dike,  (3  Duer,  220.) 

105 


834  Forms  Relating  to 

heretofore,  and  on  or  about  the day  of , 

18 — ,  at ,  the  said  defendant,  intending  to  deceive 

and  defraud  the  phiintilf,  did  encourage  him  to  buy  a  cer- 
tain bay  horse,  tlien  in  the  possession  of  the  said  defendant,' 

of  tlie  value  of dollars,  and  falsely  and  fraudulently 

affii'ined  that  the  said  horse  belonged  to  him,  the  said  de- 
fendant, and  thereby  caused  the  said  plaintiff  to  buy  the 
said  horse,  which  the  said  defendant  delivered  as  his  horse ; 
and  the  said  plaintiff,  conliding  in  the  said  defendant's 
atlirniation,  purchased  said  horse  of  him,  and  satisfied  him 
therefor ;  whereas,  in  truth,  at  the  time  of  said  affirmation 
and  delivery,  the  said  defendant  was  not  the  owner  of  the 
said  horse,  and  had  no  right  to  sell  him,  but  the  horse  be- 
longed to  one  F.  D.,  and  the  said  defendant  well  knew  the 

same,  to  the  plaintiff's  damage  of dollars,  for  Avhich 

amount,  with  the  costs  of  this  action,  plaintiff  claims  judg- 
ment against  the  defendant. 

M.  F.,  Plaintiff'' s  Attorney. 
[Office  address.''] 
[Verification  as  in  forms  Nos.  151,  etc.] 


No.  939. 

Complaint  for  Falsely  Representing  a  Third  Person  as  fit 
to  be  Trusted,  etc. 

[Title  of  cause.] 

Tne  plaintiff  complains  of  the  defendant  and  alleges,  that 
plaintiff  was,  at  the  time  of  the  committing  of  the  grievance 
by  the  defendant,  as  hereinafter  next  mentioned,  and  from 
thence  hitherto  hath  been,  and  still  is,  engaged  in  the  trade 
and  business  of  a ,  at . 

That  on  or  about  the day  of ,  18 — ,  one 

J.  K.  applied  to  the  said  plaintiff,  and  then  and  there  re- 
quested the  said  plaintiff  to  sell  goods  on  credit  to  him,  the 

■  Though  the  general  rule  is  that  the  own  peril,  unless  there  be  an  express 

vendor  of  a  chattel  impliedly  warrants  warranty.     (Edick  v.  Crim,  10  Barb., 

the  title,  yet,  when  the  chattel  is  not  445;  Scranton  v.  Clark,  39  id.,  273;  S. 

in  the  vendor's  possession,  but  in  that  C.  aff'd,  39  N.  Y.,  220.) 
of  another,  this  rule  does  not  prevail.        *  See  note  3  to  form  No.  123. 
In  such  case  the  party  buys  at  his 


Actions  for  Wrongs.  835 

said  J.  K.,  in  the  way  of  his,  the  said  plaintiff's,  said  trade 
and  business ;  and  the  said  plaintiff  being  then  unac- 
quainted with  the  character  and  circumstances  of  the  said 
J.  K.,  was  then  and  there  referred  by  him  to  the  said  de- 
fendant for  information  respecting  the  same,  whereof  the 
said  defendant  afterwards,  and  before  the  sale  of  any  goods 
to  the  said  J.  K.,  by  said  plaintiff,  to  wit :  on  or  about  the 

day  of ,  18 — ,  had  notice  from  [one  L.  M., 

the  servant  of]  the  said  A.  B.,  and  the  said  defendant  was 
then  and  there  interrogated  by  the  said  [L.  M.  on  the  part 
of  the  said]  A.  B.,  respecting  the  character  and  circum- 
stances of  the  said  J.  K. 

That  the  said  defendant,  well  knowing  the  premises,  and 
that  the  said  J.  K.  was  then  in  bad  circumstances  and  unfit 
to  be  trusted  with  goods  on  credit,  but  contriving  and 
fraudulently  intending  to  deceive  and  injure  the  plaintiff  in 
this  behalf,  on  the  day  and  year  aforesaid,  falsely,  fraudu- 
lently and  deceitfully  informed  the  said  [L.  M.],  in  answer 
to  certain  questions  then  and  there  put  to  the  said  defend- 
ant by  the  said  [L.  M.  on  the  part  of  the  said]  plaintiff,  re- 
specting the  character  and  circumstances  of  the  said  J.  K., 
that  he,  the  said  defendant,  knew  the  said  J.  K.,  and  had 
done  a  deal  of  business  with  him,  and  taken  a  deal  of  his 
[the  said  J.  K.'s]  money ;  and  that  he,  the  said  defendant, 
then  did  business  with  the  said  J.  K.,  and  that,  upon  the 
whole,  he,  the  said  defendant,  believed  the  said  J.  K.  to  be 
a  good  man  [thereby  meaning  that  he,  the  said  defendant, 
believed  the  said  J.  K.  to  be  a  man  in  good  circumstances, 
and  fit  to  be  trusted  with  goods  on  credit]. 

That  by  means,  and  in  consequence  of  which  information 
so  given  by  tlie  said  defendant  to  the  said  [L.  M.]  as  afore- 
said, the  said  plaintiff,  not  knowing  to  the  contrary,  but 
believing  therefrom  that  the  said  J.  K.  was  a  man  in  good 
circumstances,  and  fit  to  be  trusted  as  aforesaid,  afterwards, 
to  wit :  on  the  day  and  year  aforesaid,  and  on  divers  other 

days  and  times  between  that  day  and.  the day  of 

,  then  next  foUoAving,  was  induced  to  give  credit 

to  the  said  J.  K.,  and  did   thf^n  sell  and  deliver  to  him 

divers  goods  on  credit  to  a  large  amount,  to  wit : 

dollars  worth  ;  whereas,  in  truth  and  in  fact,  the. said  J.  K., 


836  Forms  RELATii^a  to 

at  the  time  of  the  said  defendant  so  giving  the  said  informa- 
tion to  the  said  [L.  M.]  as  aforesaid,  was  in  bad  and  insol- 
vent circumata-nces,  and  not  lit  to  be  trusted  with  goods  on 
credit ;  and  whereas,  in  truth  and  in  fact,  the  said  defend- 
ant did  not,  at  tliat  time,  do  business  with  the  said  J.  K.  ; 
and  whereas,  in  truth  and  in  fact,  the  said  defendant  did 
not  believe  the  said  J.  K.  to  be  a  good  man,  bnt,  on  the 
contrary  thereof,  at  that  time  well  knew  the  said  J.  K.  then 
was  in  bad  and  insolvent  circumstances,  and  not  fit  to  be 
trusted  with  goods  on  credit. 

And  the  said  plaintiff  further  says,  that  the  said  several 
sums  of  money  are  still  wholly  due  and  unpaid  to  the  said 
plaintiff,  and  he  is  likely  w^holly  to  lose  the  same. 

Wherefore  the  plaintiff  [prayer  for  judgment].' 

M.  F.,  Plaintiff '  s  Attorney , 
[Office  address."] 

[Verification  as  in  forms  Nos.  161,  etc.] 


No.  940. 


Complaint  in  Action  for  False  Representations  Made  to 
Induce  a  Purchase  of  Real  Estate. 

[Title  of  cause.] 

The  plaintiff  complains  of  defendant  for  this,  to  wit :  that 

the  said  defendant,  on  or  about  the day  of , 

18 — ,  in  consideration  that  the  said  plaintiff  would  buy  of 

him  a  farm  of  land  situate  in  the  town  of ,  in  the 

county  of  ,  and  pay  unto  him  the  sum  of  $9,000, 

by  transfer  of  other  real  estate  and  other  securities,  for  the 

*  False   represfMiiations   as    to    the  (23  id.,  .^.53),   Salisbury  v.   Howe   (87 

solvency  or  pecuniary  condition  of  an-  N.  Y.    12S),   Babcock   v.    Libbey    (82 

other,  to  be  actionable  as  frauduU-nt,  id.,  144),  Doty   v.    Campbell   (1    How. 

must,  at  the  time,  have  been  known  to  Pr.  N.  S  ,  101),  Hickey  v.  MoTrell  (102 

be  false  by  the  per.son  makinu'  them,  N.  Y.  4.54.  463),  Gossler  v.  Lissburger 

or  he  must  have  assumed  or  intended  (19    Week.    Dig,    291),  Thompson    v. 

to  convey  the   impres.«ion  that  he  had  Gray  (11  Daly,  183),  Schwenk  v.  Nav- 

actnal     knowledge     of     their     truth,  lor  ("102  N.  Y.,  683),  Phillips  v.  Wor- 

though  <-on9cious  that  he  had  no  such  tentlyke  (31  Hun,  192),  .lex  v.  Strauss 

knowledge.     (Marsh  v.  Falker,  40  N.  (122  N.  Y.,  293),  Kelly  v.   Gould  (47 

Y.,  562,  and  Chester  v.   Comstock  in  State  Rep.,  5;  aff'd  S.  C,  141  N.  Y., 

note  40  id.,  p   .57.5.)  596),  Kujek   v.    Goldmann    (5    Misc., 

See,  al.-o.  Zabi-iskie  v.  Smith  (13  N.  360)  ;  affVi  S.  C,  9id.,  34).  Rothmiller 

Y.,  3_'0),  Mver  V.  Amidon,45id..  1G9).  v.   Stein    (9    id.,    167  ;  aff'd  S.  C,  143 

Hubl)ell  v.  Meis-s  (.-.0  jd.,483).  Wake-  N.  Y.,  .581),  Markey  v.  Diamond  (46 

man  v.  Dalley  (.51  id,,  27),   Duffany  v.  State  Rep.,  283). 
Ferguson  (6''.  id..  482).  Frisbee  v.  Fitz-         ^  See  note  2  to  form  No.  122. 
simons  (3  Hun,  674),  Meyer  v.  Amidon 


Actions  for  Wrongs.  837 

same,  lalsely  and  fraudulently  represented  and  alleged  that 
tlie  said  farm  contained  ninety  acres  of  land. 

And  the  said  plaintiff  alleges,  that  he  relied  upon  such 
representations  and  allegations  of  the  said  defendani,  and 
did  purchase  and  pay  for  the  said  farm  at  the  price  above 
specified,  and  that  such  representations  and  allegations  were 
untrue,  and  that  said  farm  contained  only  about  seventy- 
eight  and  a  half  acres  of  land,  and  that  the  said  plaintiff 
hath  sustained  damages  to  the  amount  of  81,500. 

Wherefore  he  brings  suit  and  demands  judgment  against 

the  said  defendant  for  the  sum  of  $1,500,  besides  costs  of 

this  suit.' 

P.  W.  B.,  Plaintiff's  Attorney. 

[Office  address."] 

[Verification  as  in  forms  Nos.  151,  etc.] 


No.  941. 

Complaint  iu  Action  where  False  Representations  have' 

been  made  to  Induce  Credit. 

[Title  of  cause.] 

The  plaintiff  complains  of  the  defendant  and  alleges,  that 

'This  form  of  complaint  is  from  the  ance  upon  the  representations  made, 

case  of  Thomas  v.  Beet>e  (25  N.  Y.,  or  there  must  have  been  some  artifice 

224),  which  case  sustains  the  form  and  employed  to   prevent   inquiry  or   the 

holds  that  the  allegation  that  the  de-  obtaining  knowledge  by  him.    (Chrys- 

fendant  "falsely  and  fraudulently  rep-  ler  v.  Canaday,  90  N.  Y.,  272;  distin- 

resented"i3  a  sufficient  statement  of  guishing-Simar  v.  Canaday,  5H  id.,  298; 

the  scienter.     See,  also,  to  same  effect,  and  reversing  S.  C,  12  Week.Dig.,214;. 

Millei-  V.  Barber  (infra),  p.  564.  See,    also,  Drake  v.  Gi-ant    (36  Hun, 

To   maintain   an   action   to  recover  464),  Weidner  v.  Phillips  (39  Hun,  1), 

damages  for  deceit  in  inducing  a  pur-  Tyler   v.  Guy   (21    Week.    Dig.,    56), 

chase,  it  is  not   necessary  to   show  a  Dake   v.   Gi-ant  (22  Slate  Reji.,  502), 

return  or  offer  to  return  the  property.  Schwenck  v.  Naylor  (102  N.  Y.,  683), 

(Miller  v.  Barber,  66  N.  Y.,  558.)  Tyler   v.  Guy   (24   Week.   Dig.,    39), 

See,  also,  Barber  v.  Morgan  (51  Cross  v.  Devine  (4G  Ilun,  421),  Hop- 
Barb.,  116),  Star  Steamship  Co.  v.  kins  v.  Riggs  (30  State  Rep.,  391), 
Mitchell  (1  Abb.  [N.  S.],  396),  as  to  Schumaker  v.  Mather  (133  N.  Y.,  590). 
form  of  complaint  for  deceit  in  indue-  As  to  whether  in  such  an  action  the 
ing  the  sale  of  property.  jui'y  can  give  imnitive  damages,  qucBre. 

A  mei'e  assertion  Ijy  a  vendor  as  to  (Chrysler  v.  Canaday    supra). 

the  value  of  property  offered  by  him  See,  also,  Long  v.  Wairen  (68  N.  Y., 

for  sale,  although  untrue  and  known  426),  and  cases  there  cited,  as  to  what 

by  him  to  be  so,  will  not  render  him  is  necessary  to  sustain  this  action, 

responsihle  to  the  vendee  for  damages.  For  a   form  of  complaint  in  action 

There    rnu.-t    have    been    a    want    of  for  deceit  in  eale  of  chattels,  see  Moore 

knowledge  on  the  jiart  of  the  latter,  v.  NoljJe  (53  Barb.,  425). 

and  a  jiurchase  by  him  in  entire  reii-  'See  note  2  to  form  No.  122. 


838  Forms  Relating  to 

heretofore,  and  on  or  about  the day  of  — , 

18 — .  at ,  the  defendant,  to  induce  the  plaintiff  to 

sell  to  him  on  credit  certain  goods  and  chattels  [or  wares 
and  merchandise],  to  wit  [state  nature  of  goods],  of  the 
value  of  dollars,  falsely  and  fraudulently  repre- 
sented to  plaintiff  that  [state  the  representations  made].' 

That  the  plaintiff'  relying  upon  these  representations  of 
defendant,  sold  and  delivered  the  said  goods  and  chattels  to 

the  defendant,  for  which  the  defendant  agreed  to  i)ay 

dollars. 

That  the  said  representations  so  made  by  defendant  were 
untrue,  and  that  in  truth  and  in  fact  [state  in  wliat  respect 
the  representations  were  false,  as  in  form  No.  939]. 

That  no  part  of  the  price  of  said  goods  and  chattels  has 
been  paid.  [*] 

Wherefore  the  plaintiff  demands  judgment  against  the 
defendant  for dollars  and cents,  with  inter- 
est from  the day  of ,  18 — ,  together  \\ith  the 

costs  of  this  action. 

[Or  if  special  damages  have  been  sustained,  as  above 
to  (^),  and  from  thence  as  follows :  That  by  reason  of  said 
false  and  fraudulent  representations,  the  j)laintiff  has  been 
put  to  great  trouble  and  expense,  to  wit  (state  special  dam- 
ages), and  conclude  with  prayer  for  judgment  as  above.] 

M.  F.,  PJa'mtiff's  Attorney. 
[Office  address.'] 

[Verification  as  in  forms  Nos.  151,  etc.] 

'  The  complaint  must  state  in  what  for  fraud,  in  incumng  the  liability 
manner  the  plaintiff  was  induced  to  sought  to  be  enforced,  the  facts  show- 
give  the  credit ;  in  other  words,  the  rep-  ing  the  fraud  must  be  distinctlj^  set 
resentation  made  should  be  stated,  that  forth  in  the  complaint.  (Hecht  v. 
the  court  may  judge  if  it  was  sufficient  Levy,  20  Hun,  53.)  See,  also,  Flatow 
to  mislead,  or  the  plaintiff  does  not  v.  Von  Bremsen  (33  State  Rep.,  24), 
show  a  cause  of  action.  ("Wells  v.  Markey  v.  Diamond  (46  id.,  283). 
.Iewett,llIIow.,242.)  See,  also,  Thur-  The  allegation  that  the  defendant 
man  v.  Mosher  (1  Hun,  344;  S.  C,  3  "falsely  and  fraudulently  represent- 
N.  Y.  Supr.  Ct.  [T.  &  C],  583^.  ed,"  is  a   sufficient   allegation  of  the 

Since  the  addition  in  1879  of  subdi-  scienter  in  the  complaint.     (Miller  v. 

vision  four  to  section  549  of  the  Code  Barber,  66  N.  Y.,  558,  564  ;   Thomas 

of  Civ.  Pro.,  in  order  to  subject  the  v.  Beebe,  25  id.,  244  ;  Moore  v.  Noble, 

defendant  to  an  arrest  in  an  action  53  Barb.,  425.) 
upon  a  contract,  express  or  implied,         A  debt  fraudulently  contracted  be- 


Actions  for  Wrongs.  839 

No.  942. 
Complaint  against  Sheritt*  for  False  Return. 

[Title  of  cause.] 

The  above  named  plaintiff  complains  of  the  defendant  and 

says,  that  on  or  about  the day  of ,  18 — , 

he  obtained  a  judgment  in  the Court  against  one 

W.  M.,  of  the of  — — — ,  in  the  county  of , 

amounting  to dollars,  the  judgment  roll  upon  which 

was  filed  in  the county  clerk's  office,  and  a  tran- 
script thereof  duly  filed  and  said  judgment  docketed  in  the 

office  of  the  clerk  of  the  county  of ,  on  the 

day  of ,  18 — ,  and  that  an  execution  thereon  was 

duly  issued  to  and  received  by  this  defendant,  as  sheriff 

of  the  said  county  of ,  on  the day  of , 

18 — ,  against  the  property  of  the  said  W.  M.,  commanding 

the  said  sheriff  to  levy  the  said  sum  of dollars,  and 

interest  thereon  from  the day  of ,  18 — , 

and  [*]  the  said  defendant,  by  virtue  of  the  said  execution, 
took  in  execution  goods  and  chattels  of  the  said  W.  M.,  in 
value  more  than  sufficient  to  satisfy  the  said  execution  and 
his  fees  and  charges  thereon  ;  and  yet  the  said  defendant, 

afterwards,  and  on  or  about  the day  of , 

18 — ,  returned  the  said  writ,  and  made  return  thereto  that 
the  said  defendant,  W.  M.,  had  no  goods  and  chattels  in  his, 
the  defendant's,  bailwick,  out  of  which  he  could  cause  to  be 
levied  the  amount  of  the  said  judgment,  and  that  by  reason 
of  the  premises  the  plaintiff  has  sustained  damage  to  the 

amount  of  dollars  [insert  amount  of  judgment], 

and  interest  thereon  from  the day  of ,  18 — , 

for  which  amount,  with  costs  of  this  action,  he  demands 
judgment  against  the  defendant. 

M.  F.,  Plaintiff's  Attorney. 
[Office  address."] 

[Verification  as  in  forms  Nos.  151,  etc.] 

comes  due  immediately  upon  the  die-     v.  Lissner,  20  Week.  Dig.,  319.) 
covery  of  the  fraud,  without  regard  to        *8ee  note  2  to  form  No.  122. 
the  stipulated  time  of  credit.     (Muser 


840  Forms  Relating  to 

No.  943. 
Complaint  against  Slu^ritt*  for  not  making  Return. 

As  in  last  form  No.  942  to  ['^'J,  and  from  thence  as  fol- 
lows :  And  to  return  the  said  execution,  within  sixty  days 
after  the  receipt  thereof  by  him,  to  the  county  clerk  of 

county  ;   and  now,  at  this   time,   the  defendant, 

althougli  sufficient  time  has  elapsed  therefor,  has  not  re- 
turned the  said  execution  as  commanded  and  directed,  and 
that,  by  reason  of  such  neglect,  this  plaintiff  has  sustained 
damage  to  the  amount  of dollars  [amount  of  judg- 
ment], and  interest  thereupon  from   the  day  of 

,  18 —  [day  of  entry  of  judgment],  for  which  amount, 

together  with  the  costs  of  this  action,  this  plaintiff  demands 
judgment  against  the  defendant. 

B.  P.,  Plaintiff'' s  Attorney. 
[Office  address.'] 

[Verification  as  in  forms  Nos.  151,  etc.] 


No.  944. 

Complaint  against  Sheriff  for  an  Escape. 

As  in  form  No,  942  to  [*],  and  from  thence  as  follows : 
Which  said  execution  was  returned  wholly  unsatisfied,  and 

afterwards,  on  or  about  the day  of ,  18 — , 

another  execution  was  issued  and  received  by  this  defend- 
ant on  the  said day  of ,  18—,  commanding 

him,  the  said  sheriff,  forthwith  to  arrest  the  said  W.  M. 

and  commit  him  to  the  jail  of  the  said  county  of 

until  he  should  pay  the  said  judgment,  or  should  be  dis- 
charged according  to  law  by  virtue  of  which  said  writ,  the 
said  defendant,  so  being  sheriff  as  aforesaid,  took  and 
arrested  the  said  W.  M.  by  his  body,  and  then  and  there, 
by  virtue  of  the  said  writ,  had  and  ke^it  and  detained  him 

in  his  custody  in  execution  for  the  said  sum  of 

dollars,  besides  sheriff's  fees  and  poundage,  and  kept  and 
detained  him  in  custody  from  thence  till  the  said  defendant, 
before  the  commencement  of  this  action,  without  the  leave 
or  license,  and  against  the  will  of  this  plaintiff,  suffered  and 

'  See  note  2  to  form  No.  122. 


Actions  for  Wrongs.  841 

permitted  the  said  W.  M.  to  escape  and  go  at  large,  and 
the  said  W,  M.  did  escape  and  go  at  large  wheresoever  he 
would,  out  of  the  custody  of  this  defendant,  being  sheriff 

as  aforesaid  ,   and  the  said  sum  of — —  dollars  and 

interest  thereon  being  then  and  still  wholly  unpaid  and  un- 
satisfierl.  whereby  an  action  has  accrued  to  this  plaintiff  to 
demand  and  have  of  and  from  this  defendant  the  said  sum 

of dollars,  and  interest  thereon  from  the 

day  of ,  18 — ,  and  plaintiff  prays  judgment  there- 
for, with  the  costs  of  this  action.' 

B.  P.,  Plaint i^'s  Attorney. 
[Office  address.'] 


No.  945. 

Complaint  in  Action  for  Escape,  where  Order  of  Arrest  has 
been  Issued  and  Arrest  made  under  it. 

[Title  of  cause,] 

•  The  plaintiff  complains  of  the  defendant  as  follows  :  That 
at  all  the  times  hereinafter  mentioned,  the  defendant  was 
the  sheriff  of  the  [city  and]  county  of  [New  York]. 

That  heretofore,  to  wit :  on  or  about  the day  of 

*  The   BheriflF  is  not  liable   for  the  Further,    as    to    action    generally, 

escape   if  pi'ocess   of  arrest  is   void,  pleadings,   defenses,    etc.,    see   cases 

(Carpenter  v.  Willett,  31  N.  Y.,  90  ;  1  above  cited  and  Wesson  v.  Chamber- 

Keyes,  510  ;   Goodwin  v.  Griffis,  88  N.  lain  (3  N.  Y.,  331),  Bugh  v.  Pellibone 

Y.,  629)  ;  but  he  cannot  take  ad  van-  (4  id.,  300),    Hutchinson  v.    Brand,  9 

tage  of  mere  irregularity  in  process,  id.,  208),  Bensel  v.  Lynch  (14  id.,  102), 

(Douglas  V.  Haberstro,  88  N.  Y.,  611),  Bullymore    v.    Cooper    (46   id.,   236; 

or  set  up  error  in  process  rendering  it  aff'g  S.  C,  2  Lans.,  71),  Lawrence  v. 

voidable  only  (Dunford  v.  Weaver,  84  Campbell  (32  N.  Y.,  4r)5),  Cosgrove  v. 

N.  Y.,  445).  Bowe  (2  Civ.  Pro.  Rep.  LBrowne],  61), 

As  to  insolvency  of  the  debtor  as  a  McCreery   v.  Willett   (4   Bosw.,   643 1 

defense,  see  case  last  cited  and  Smith  aff'd  S.  C.,  9  id.,  600;   23  Uow.  Pr., 

V.  Knapp  (30  N.  Y.,  581),   also  Code  129),  Renick  v.  Orser  (4  Bosw..  384), 

Civ.  Pro.,  §  158.  Maas  v.  O'Brien  (14  Hun,  95).  Toll  v. 

"All  that  the  plaintiff  must  allege  Alvord  ((;4  Barb.,   568),    Wilckens  v. 

and  prove,  to  maintain  his  action,  is  Willett  (1  Keyes,   521 ;   4  Abb.  App. 

the   recovery   of   the    juilgment,   the  Dec,   696);    Coiie   Civ.    Pro.,    §   158, 

issuing  and  delivery  of  the  execution  Davis  v.  Fiske  (17  Week.  Dig.,  380), 

to  the  sheriff,  the  capture  of  the  debtor  People  ex  rei  Tnlly   v.  DavidH(>n    (67 

by  the  sheriff  upon  the  execution  and  How.  Pr.;  416),  Zeniu'r  v.  Ble.^Bing  (4 

the   escape    from  custody  before  suit  N.  V.  Sii])p.,  866),  Meyers  v.    Becker 

brought  against  the  sheriff  therefor."  (29  Hun,  567),  McConihe  v.  Palmer  (76 

(Per  Grover,  J.,  Richtmeyer  v.  Rem-  Hun,  116). 

Ben,  38  N.  Y.,  208.)  '  See  note  2  to  form  No.  122. 
106 


842  Forms  Relating  to 

,  IS — ,  this  plaintiff  commenced  an  action  in  this 


court  against  one  P.  W.  for  the  recovery  of  the  sum  of 

dolkirs,  with  interest  thereon  from  the 

day  of ,  18 — ,  in  which,  on  or  about  the 


day  of ,  18—,   the  Hon    J.   W.  W  ,  one  of  the 

[judges]  of  this  court,  on  an  affidavit,  then  and  there  pre- 
sented to  him,  made  his  certain  order,  bearing  date  on  that 
day,  as  follows  [here  set  forth  copy  order  of  arrest],  which 
said  order,  with  the  affidavit  upon  which  the  same  was  ob- 
tained, and  the  summons  and  complaint  in  the  said  action, 
and  copies  to  serve  on  the  said  P.  W.,  were  thereafter,  to  witr 

on  or  about  the day  of ,  18 — ,  delivered 

to  the  defendant,  on  behalf  of  the  plaintiff,  with  instruc- 
tions to  arrest  the  said  P.  W, 

That  thereafter,  to  wit :  on  or  about  the day  of 

,  18 — ,  the  defendant,  under  and  b\^  virtue  of  said 

order,  at ,  did  arrest  the  said  P   W.,  and  at  the 

same  time  delivered  to  him,  a  copy  of  the  said  order,  and 
of  the  said  affidavit  upon  which  the  eame  was  granted, 
and  of  the  said  summons  and  complaint. 

That  bail  was  not  given  for  the  said  P.  W.  in  the  said 
action,  nor  was  any  dejDosit  made  by  him  on  his  behalf  with 
the  defendant  instead  of  bail. 

That  such  proceedings  were  thereafter  had,  in  the  said 

action,  that  on  or  about  the day  of ,  18 — , 

the  plaintiff  recovered  judgment  therein  against  the  said 

P.  W.  for  the  sum  of dollars,  and  the  judgment 

roll  thereupon  was  filed  in  the  [name  clerk's  ofhcej  [a  tran- 
script of  which  judgment  was  filed  and  said  judgment  duly 

docketed  in  the  office  of  the  clerk  of  the  county  of , 

on  the  — day  of ,  18—]. 

That  thereujjon,  to  wit  •  on  or  about  the day  of 

18—,  the  plaintiff  issued  his  execution  on  said 


judgment  in  due  form  of  law  against  the  property  of  the 
said  P  W.,  directed  to  the  defendant,  and  requiring  him 
to  satisfy  the  said  judgment  out  of  the  personal  property 
of  the  said  P  W.,  and,  if  sufficient  personal  property  could 
not  be  found,  out  of  the  real  property  belonging  to  the  said 
P  W  on  the  day  when  the  said  judgment  was  docketed  in 
said  county,  or  at  any  time  thereafter 


Actions  for  Wrongs.  843 

That  thereafter,  to  wit :  on  or  about  the day  of 

,  18 — ,  the  defendant  did  return  the  said  execution 


wholly  unsatisfied  to  the  office  of  the  clerk  of  the  county 

of . 

[Then  allege  issue  of  execution  against  person  of  P.  W., 
arrest  of  defendant  thereunder  and  his  escape,  and  the  non- 
payment of  the  Judgment,  as  in  form  No.  944,  and  continue 
as  follows] :  and  that  said  P.  W.  has  not  rendered  himself 
amenable  to  the  said  execution  against  his  person  to  en- 
force the  said  judgment,  to  the  damage,  etc.  (conclude  as 
in  form  No.  944)].* 

M.  W.,  Plaintiff's  Attorney. 
[Office  address.'] 


No.  946. 

Complaint  against  Sheriff  in  Action  for  an  Escape  from 
Custody,  under  Order  of  Arrest,  when  the  Action  is 
Brought  before  Judgment. 

[Title  of  cause.] 

The  i^laintiff  complains  of  the  defendant  and  alleges,  that 

heretofore  and  on  the day  of ,  18 — ,  an 

order  directing  the  arrest  of  C.  D,,  in  an  action  in  the  [Su- 
preme] Court  between  the  above  named  j^laintiff  as  plaintiff 
and  said  C.  D.  as  defendant  for  [state  cause  of  action  or 
case  justifying  arrest  under  sections  549,  550,  Code  Civ. 
Pro.  {or  insert  copy  of  order  of  arrest)],  was  duly  made  by 
Hon.  A.  O  ,  one  of  the  justices  of  said  court,  directed  to  the 

sheriff  of county  [or  to  the  sheriff  of  any  county], 

by  which  the  said  sheriff  was  directed  forthwith  to  arrest 
the  said  C.  D.,  if  he  was  found  within  his  county,  to  hold 

him  to  bail  in  the  sum  of dollars,  and  to  return  the 

order,  with  his  proceedings  thereunder,  as  required  by  law. 

That  said  order  was  delivered,  on  the day  of 

,  18 — ,  to  the  defendant  who  was  then  and  at  the 

time  of  the  arrest  hereinafter  n)entio"ned  the  sheriff  of  the 
county  of to  be  executed  by  him  as  sucli  sheriff. 

That  said  defendant  as  such  slieriff  afterwards  and  on  or 


>  See  note3  to  form  No.  944.  *  See  note  2  to  form-  No.  122. 


844  Forms  Relating  to 

about  the day  of ,  18 — ,  arrested  the  said 

C.  D.  pursuant  to  the  requirement  of  the  said  order,  and 
liad  and  detained  said  C.  I),  in  custody,  and  kept  and  de- 
tained him  in  his  custody  from  thence  till  the  said  defend- 
ant, without  the  leave  or  license  and  against  the  will  <of  this 
plaintilf,  sullVied  and  permitted  the  said  C.  D.  to  escape 
and  go  at  large,  and  the  said  C.  D.  did  escape  and  go  at 
large  wheresoever  he  would,  beyond  the  liberties  of  the  jail 

of  the  said  county  of ,  and  out  of  the  custody  of 

this  defendant,  being  sheriff  as  aforesaid,  to  the  damage  of 

the  plaintiff  of dollars,  for  which  amount,  with  the 

costs  of  this  action,  plaintiff  prays  judgment  against  the 

defendant.' 

M.  F.,  Plaintiff^  s  Attorney. 

[Office  address.'] 

[Verification  as  in  forms  Nos.  151,  etc.] 


No.  947. 
Complaint  for  Conversion  of  Personal  Property. 

[Title  of  cause.] 
The  jilaintiff  complains  of  the  defendant  and  alleges,  that 

the  said  plaintiff  was  heretofore,  to  wit :  on  the day 

of ,  18 — ,  lawfully  possessed  \or  was  entitled  to  the 

immediate  possession],  as  of  his  own  property,  of  certain 
goods  and  chattels,  to  wit  [describing  them ;  e.  g.^  ten 
horses,  etc.  [describing  animals],  a  certain  indenture  of  re- 
lease, bearing  date  the day  of ,  18 — ,  pur- 
porting to  be  made  between  J.  K.,  of  the  one  part,  and 
L.  M.,  of  the  other  part,  and  purporting  to  be  a  conveyance 
from  the  said  J.  K.  to  the  said  L.  M  of  certain  tenements 
therein  mentioned  ;  and  a  certain  other  deed,  purporting  to 
be  a  mortgage  of  certain  tenements  by  the  said  J.  K.  to  the 
said  L.  M. ;  and  of  a  certain  indenture  of  lease,  bearing  date, 
etc.,  and  made  between  one  N.  O.  of  the  first  part  and  one 
P.  Q.  of  the  other  part,  by  which  said  last  mentioned  in- 
denture the  said  N.  O.  demised  to  the  said  P.  Q.  certain 


'  See  notes  to  form  No.  942,  and  see    be  maintained  and  for  form  of  com- 
Cosgrove  v.  Bowe  (2  Civ.  Pro.  Rep.     plaint. 
[Browne],  61),  that  such  action  may        ^  See  note  2  to  form  No.  132. 


Actions  fok  Wrongs.  845 

tenements  therein  mentioned,  for  a  certain  term  therein 
mentioned  and  yet  unexpired  ;  and  a  certain  writing  obliga- 
tory commonly  called  a  bond,  sealed  with  the  seal  of  one 
R.  S,,  whereby  the  said  R.  S.  became  bound  to  the  said 

A.  B.  in  the  penal  sum  of dollars,  and  then  and 

still  being  in  full  force  ;  and  a  certain  bill  of  exchange  in 
writing,  made  and  drawn  by  one  T.  U.  upon,  and  accepted 

by,  the  said  C.  D.,  bearing  date  the day  of , 

18—,  whereby  the  said  T.  U.  requested  the  said  C.  D.,  six 
months  after  the  date  thereof,  to  pay  to  the  said  A.  B.,  or 
his  order,  the  sum  of ;  and  a  certain  other  bill  of  ex- 
change, accepted  by  the  said  C.  D.,  for  the  payment  hj  him, 
the  said  C.  D.,  of  a  certaj.i  sum  of  money,  to  wit :  the  sum 

of ,  at  a  certair,  day  therein  mentioned,  and  now 

past ;  and  a  certain  promissory  note,  in  writing,  made 
and  drawn  by  one  W.  X.,  whereby  he,  the  said  W.  X., 
promised  to  pay  to  the  said  A.  B.,  or  his  order,  a  certain 

sum  of  money,  to  wit :  the  sum  of dollars,  at  a 

certain  time  therein  mentioned  and  now  past ;  and  divers, 
to  wit :  twelve  notes  of  the  National  Commercial  Bank  of 
Albany,  commonly  called  bank  notes,  for  the  payment  of 

the  sum  of dollars  each  ;  and  divers,  to  wit :  twenty 

pieces  of  the  current  coin  of  this  State  called  eagles  [or  half 
eagles,  dollars,  half-dollars,  dimes,  etc.]  ;  and  divers,  to  wit: 
twenty  tables,  twenty  chairs,  etc.  fspecifying  the  goods, 
and  avoiding  any  repetition  of  the  same  articles,  and  de- 
scribing each  as  generally  as  possible,  omitting  the  quality 

as  "mahogany,"  "silver,"  etc.],'  of  the  value  of 

dollars. 

That  on  the  said day  of ,  18 — ,  the  said 

defendant  converted  and  dis])osed  of  the  said  goods  and 
chattels  to  his  own  use,  to  the  damage  of  the  plaintiff  of 

dollars,  for  which  amount  the  x)laintiff  demands 

judgment  against  said  defendant,  with  costs  of  this  action." 

M.  F.,  Plaint/jrs  Attorney. 
[Office  address.  =■] 

[Verification  as  in  forms  Nos.  151,  etc.] 

'  As  to  description  of  property,  see  407),  Oonlon  v.  Hostetter  (37  N.  Y., 
Picrson  v.  Townscnd  ("2  Hill.  550),  09;  4  Al)l).  N.  S.,  20:?),  Carpi'iiticr  v. 
Dows  V.  BignuU  (Hill  in  iXn.  Supp..     Willetl  (1  Keycs.  510),  Bissel  v.  Drake 


846 


Forms  Relating  to 


No.  948. 

Complaint  in  an  Aetion  for  Conversion  of  Chattels  Bronglit 

by  an  Executor. 

[Title  of  cause.] 

The  plaintilf  complains  of  the  defendant  and  alleges,  that 

J.  K.  in  his  life-time,  and  on  or  about  the day  of 

,  18 — ,  was  lawfully  possessed  of  divers  goods  and 

chattels,  to  wit,  etc.  [describe  the  property],  of  great  value, 

to  wit :   of  the  value  of dollars,   as  of  his  own 

property. 

That  the  defendant  afterwards  and  on  the day 

of ,  18 — ,  and  in  the  life-time  of  the  said  J.  K.,  at 

,  converted  and  disposed  of  the  said  goods  and 


chattels  to  his  own  use. 

[Allege  death  (intestacy)  and  appointment  of  plaintiff  as 
administrator  {or  executor)  as  in  form  No.  845.] 

That  by  means  of  the  premises  the  plaintiff,  as  such  ad- 
ministrator [or  executor],  has  been  damaged  to  the  amount 


(19  Johns.,  66).  See,  also,  Code  Civ. 
Pro.,  §1697. 

*  As  to  what  should  be  averred  and 
proved  in  an  action  brought  by  the 
maker  of  a  negotiable  promissory  note 
for  its  conversion  against  a  person  who, 
before  it  has  any  legal  inception,  wrong- 
fully negotiates  it  to  a  bona  fide  holder 
for  value,  and  that  such  an  action  can 
be  maintained,  see  Decker  v.  Matthews 
(12  N.  Y.,  313). 

In  such  a  case,  the  plaintiff  is  enti- 
tled to  recover  the  amount  of  the  note 
as  damages  for  its  conversion,  without 
averring  or  proving  that  he  has  paid 
it  to  the  holder.  It  is  sufficient  that 
he  is  legally  liable  to  paj^  it.     (Id.) 

A  wrongful  intent  is  not  a  necessary 
element  of  the  conversion.  It  is  enough 
that  the  owner  has  been  deprived  of 
his  property  by  some  unauthorized  act 
of  another,  a.ssuming  dominion  or 
control  over  it.  (Boyce  v.  Brockway, 
31  N.  Y.,  490.) 

The  allegation  of  a  conversion  is 
sufficient,  without  alleging  demand 
and  refusal.     (King  v.  Fitch,  2  Abb. 


Ct.  App.  Dec,  508.)  Demand  and  re- 
fusal in  general  constitutes  a  conver- 
sion, or,  as  is  sometimes  expressed,  is 
evidence  of  a  conversion.  There  are  ex- 
ceptions to  the  application  of  this  rule. 
(Hill  V.  Covell,  1  N.  Y.,  522;  McCor- 
mick  V.  Penn.  Cent.  R.  R.  Co.,  80  N. 
Y.,  353,  356.)  Demand  before  action 
is  unnecessary,  if  the  goods  were  tor- 
tiously  obtained.  (Pease  v.  Smith,  61 
N.  Y.,  477.)  A  bona  fide  purchaser  of 
chattels,  wrongfully  taken,  is  not  lia- 
ble for  conversion  iintil  after  a  demand 
and  refusal.  (Gillet  v.  Roberts,  57 
N.  Y.,  28.)  An  assignee  for  the  bene 
fit  of  creditors,  innocently  taking  pos- 
session of  chattels  tortiously  acquired 
b}^  assignor,  is  not  liable  for  conver- 
sion before  demand.  (Jessop  v.  MiDer, 
2  Abb.  Ct.  App.  Dec. ,  449. )  The  action 
will  lie  for  a  note  wrongfully  obtained 
and  destroyed  by  defendant  without  a 
demand.  (Powell  v.  Powell,  71  N.  Y., 
71.)  See,  also,  Hynes  v.  Patterson  (28 
Hun,  528).  See,  also,  note  1  to  form 
No.  948,  and  see  generally  as  to  ac- 
tion, among  other  cases.  Marine  Bank. 


Forms  Relating  to 


846a 


of  Buffalo  V.  Fiske  (71  N.  Y.,  353), 
Tuttle  V.  Hazard  (13  Week.  Dig-.,  222), 
ColUns  V.  Ralll  (20  Hun,  24G,  nfTd  85 
N.  Y.,  637),  Hallett  v.  Carter  (19  Hun, 
629),  Ryerson  v.  Kauffield  (13  Hun, 
387),  Hynes  v  Patterson  (95  N.  Y.,  1, 
aff'g  S.  C,  28  Hun,  528),  Richards  v. 
Pitts  Ag.  Works  (37  Hun,  1),  Brush 
V.  Batten  (15  State  Rep.,  548),  Mather 
V.  Freelove  (3  State  Rep.,  424 ;  25 
Week.  Dig.,  343),  Holeman  v.  Randall 
(26  Week.  Dig.,  20),  Dexter  v.  Dexter 
(23  State  Rep.,  208).  Burns  v.  Winchell 
(44  Hun,  261),  Kelsey  v.  Lyon  (97  N. 
r.,  629),  Manchester  v.  Tibbetts  (121 
id.,  219),  Zimmer  V.  Bantel  (28  State 
Rep.,  899),  Phillips  v.  McNab  (30  id., 
853),  McAllaster  v.  Bailey  (127  N.  Y,, 
583),  Lewis  v.  Ocean  Nav.  Co.  (125  id., 
341),  Baker  v.  Hart  (123  id.,  470), 
Heald  V.  Van  Siclen  (38  State  Rep., 
187 ;  aff-d  S.  C,  128  N.  Y.,  612),  Greg- 
ory V.  Fitchner  (27  Abb.  N.  C,  86), 
Deeley  v.  Dwight  (132  N.  Y.,  59), 
Genin  v.  Schwenk  (62  Hun,  574),  Dyett 
V.  Hyman  (129  N.  Y.,  351),  Moore  v. 
Prentiss  Tool  &  Supply  Co.  (133  N.  Y., 


144),  Korneman  V,  Fred.  Hower  Brew- 
ing Co.  (4  Misc.,  299),  Baumann  v. 
Jefferson  (id.,  147),  Thompson  v.  Vro- 
man  (66  Hun,  245),  Castle  v.  Corn  Ex- 
change Bank  (75  Hun,  89),  Russell  v. 
McCall  (141  N.  Y.,  437),  Gullman  v. 
Sharp  (81  Hun,  462),  Brady  v.  Smith 
(9  Misc.,  716),  Biel  v.  Horner  (id., 
492),  Knight  v.  Sackett,  etc.,  Lith.  Co. 
(141  N.  Y.,  404),  Clark  v.  Costello  (79 
Hun,  58S),  McQueen  v.  Lockwood  (id., 
612),  Button  V.  Kinnetz  (SS  id.,  35), 
Van  Houten  v.  Pye  (87  id.,  19),  Law- 
atsch  V.  Cooney  (86  id.,  546),  Lamb  v. 
O'Reilly  (13  Misc.,  212),  Bishop  v. 
Hendrick  (82  Hun.  323),  Cushman  v. 
Oothout  (SS  id.,  54),  Gregg  v.  Witte- 
mann  (12  Misc.,  90),  Hovey  v.  Brom- 
ley (85  Hun,  540),  Farrelly  v.  Hub- 
bard (84  id.,  391),  Reddin  v.  Lawlor 
(13  Misc.,  211),  Perkins  v.  Slocum  (82 
Hun,  366),  Goddard  v.  Cassell  (84  id., 
43),  Freck  v.  Hughes  (90  id.,  16),  Hoff 
V.  Conmeight  (14  Misc.,  314),  Mc- 
Laughlin V.  Harriott  (id.,  343). 
'  See  note  2  to  form  No.  122. 


Actions  for  Wrongs.  847 

of dollars,  for  which  amount,  with  the  costs  of  this 

action,  he  demands  judgment,  etc' 

M.  F.,  Plaintiff's  Attorney. 
[Office  address.'] 
[Verification  as  in  forms  Nos.  151,  etc.] 

[When  the  conversion  was  not  in  the  life-time  of  tlie  tes- 
tator, say  as  above  to  the  statement  of  the  conversion,  and 
then  as  follows :  And  the  said  defendant  afterwards,  and 

after  the  death  of  the  said  J.  K.,  to  wit:  on  the 

day  of ,  18 — ,  converted  and  disposed  of  the  said 

goods  and  chattels  to  his  own  use.] 


No.  949. 

Complaint  for  Arresting  a  Witness  while  Attending  as 
Such  upon  Subpoena. 

[Title  of  cause.] 

The  plaintiff  complains  against  the  defendant  and  alleges, 

that  heretofore  and  on  or  about  the day  of , 

18 — ,  while  the  said  plaintiff  was  attending  and  remaining 
as  a  witness  before  [naming  the  style  of  the  court,  etc.,  or 
while  the  said  plaintiff  was  going  to  {or  returning  from), 
state  the  place,  as  a  witness  before,  etc.],  and  to  attend 
which  court  he  had  been  duly  and  in  good  faith  subxioenaed 
as  a  witness,  by  virtue  of  a  writ  of  subpoena  issuing  out  of 
and  under  the  seal  of  the  said  court,  thereby  commanding 
the  said  plaintiff  [here  state  the  terms  of  the  subpoena],  lie, 
the  said  plaintiff,  then  and  there  was  unlawfully  and  wrong- 
fully arrested  by  the  said  defendant,  by  pretext  of  a  certain 
[state  the  process  as  nearly  as  may  be],  and  was  detained 

under  such  arrest  for  the  space  of days  \or  hours], 

then  next  after  such  arrest,  although  the  said  plaintiff,  at 
the  time  of  such  arrest,  to  wit :  on  the  day  aforesaid,  at, 
etc.,  offered  to  make  affidavit  before  him,  he,  the  said  de- 
fendant, then  and  there  being  [state  the  office  lie  held],  that 
he,  the  said  plaintiff,  had  been  legally  subpoenaed  to  attend 
as  a  witness  as  aforesaid,  before  the  coiirc,  and  at  the  day 

'  See   notes   to   last   form,  No.  947.     erally,   nee   People  ex   rel.    Crane  v. 
As   to  jileaiiing-  tiiri<i    in   actions   gen-     Ryder  (12  N.  Y.,  p.  439). 

"'  Sei!  note  'J  to  form  No.   lli'2. 


848  FoKMS  Relating  to 

and  place  in  the  said  writ  of  subpoena  for  that  purpose 
specified,  and  that  he,  the  said  plaintiff,  had  not  been  so 
snbpa^naed  by  his  own  procurement,  with  intent  of  avoid- 
ing the  service  of  any  process,  yet  the  said  defendant  then 
and  there  refused  to  accept  such  offer,  of  the  said  plaintiff, 
or  to  discharge  him  from  such  arrest,  by  means  whereof 
[and  by  force  of  the  statute  in  that  case  made],  he,  the  said 
defendant,  became  liable  to  pay  the  said  plaintiff  three 
times  the  amoimt  of  the  damages  which  a  jury  might  find 
in  his  favor;  all  which  premises  are  to  the  said  plaintiff's 
damage  of dollars,  for  which  amount,  etc.  [prayer 

for  Judgment].' 

M.  F.,  Attorney  for  Plaintiff. 

[Office  address.'] 

[Verification  as  in  forms  Nos.  151,  etc.] 


No.  950. 

Complaint  for  Manufacturing  Candles  near  a  Dwelling- 
house. 

[Title  of  cause.] 

The  plaintiff  complains  of  the  defendant  and  alleges,  that 
the  said  plaintiff,  before  and  at  the  time  of  the  committing 
of  the  grievances  by  the  said  defendant  as  hereinafter  men- 
tioned, was  and  from  thence  hitherto  has  been  and  still  is 
possessed  of  a  certain   messuage   or  dwelling-house  and 

premises,  situated  in  the  county  of \or  at,  etc.] ; 

and  the  said  messuage  or  dwelling-house,  and  premises,  the 
said  plaintiff,  with  his  family,  at  the  times  hereinafter  men- 
tioned, occupied  and  inhabited,  and  still  doth  occupy  an-d 
inhabit. 

That  the  said  defendant,  before  and  at  the  time  of  the 
committing  of  the  grievances  hereinafter  next  mentioned, 
was,  and  from  thence  hitherto  hath  been,  and  still  is  pos- 
sessed of  a  certain  piece  or  parcel  of  ground  contiguous  and 
near  to  the  said  messuage  or  dwelling-house,  and  premises, 

»  See  Code  Civ.  Pro.,  §§  860  to  8G6.  Galiprher(id.,  404),  Fretcherv.  Franks 

As  to  action,  damages,  etc.,  section  803  (15  N.  Y.  Supp.,  674),  Thorp  v.  Adams 

(id.),  and  see  forms  Nos.  363,  364,  365  (33  State  Rep.,  797),  Lederer  v.  Adams 

and  notes  thereto,  pages  270,  etc.,  and  (id.,  799;  aff 'd  without  op.,  125  N.  Y., 

see  Schofield  v.  Kreiser  (61  Hun,  368),  748),  Hollender  v.  Hall  (33  State  Rep., 

Laws  of  1892,  ch.  682,  §  2 ;  People  ex  848),  Day  v.  Harris  (37  id.,  322),  San- 

rel.    Hess  v.    Inman   (74   Hun,   130),  der   v.    Harris   (id.,  594).   Iliggins  v. 

Michaels  v.  Hains  (78  id.,500),  Sebring  Dewey  (27  Abb.  N.C.,  81),  Mark  v.  La 

V.  Stryker  (10 Misc.,  289),  Hollender  V.  Societe,  etc.   (46  State  Rep.,  660);  30 

Hall  (18  Civ.  Pro.  R.,  394),  Thorp  v.  Abb.    N.  C,  65,    note;    North   River 

Adams  (25  Abb.  N.  C.,  408),  Finch  v.  Construction  Co. v.Taussig  (DailyReg., 


Actions  for  Wrongs.  849 

of  the  said  plaintiff,  to  wit :  in  the  county  of [or 

at,  etc.]  aforesaid. 

That  the  said  defendant  contriving  and  intending  to  in- 
jure, prejudice  and  aggrieve  the  said  plaintiff,  and  to  incom- 
mode and  annoy  him  and  his  family  in  the  possession, 
occupation  and  enjoyment  of  his  said  messuage  and  dwel- 
ling-house, and  premises,  heretofore,  to  wit  :  on,  etc.,  and 
on  divers  other  days  and  times,  between  that  day  and  the 
time  of  the  commencement  of  this  suit,  wrongfully  and 
injuriously  erected  and  built  a  certain  building  and  erection 
on  the  said  piece  or  parcel  of  ground  of  the  said  defendant, 
so  being  contiguous  and  near  to  the  said  messuage  or  dwel- 
ling-house, and  premises,  of  the  said  plaintiff  as  aforesaid, 
and  wrongfully  and  injuriously  kept,  and  continued  and 
caused  to  be  kept  and  continued,  the  same  building  and 
erection,  so  erected  and  made,  for  a  long  space  of  time, 
to  wit,  hitherto,  and  on  the  several  days  and  times  aforesaid, 
to  wit,  in  the  county  of [or  at,  etc.]  aforesaid,  wrong- 
fully and  injuriously  exercised  and  carried  on,  in  the  said 
house  and  building,  the  trade  or  business  of  a  candle  maker 
or  manufacturer  of  candles,  and  made,  or  caused  and  pro- 
cured to  be  made  and  manufactured,  divers  large  quantities 
of  candles  therein  ;  by  means  of  which  several  premises  di- 
vers noisome,  noxious  and  offensive  vapors,  fumes,  smokes, 
smells  and  stenches,  on  the  several  days  and  times  afore- 
said, rose,  issued  and  proceeded  from  the  said  building  and 
erection,  and  entered  into  and  spread  and  diffused  them- 
selves over  and  upon,  into,  through  and  about  the  said  mes- 
suage or  dwelling-house  and  premises  of  the  said  plaintiff, 
and  the  air  over,  through  and  about  the  same,  was  thereby 
greatly  filled  and  impregnated  with  the  said  noisome, 
noxious  and  offensive  vapors,  fumes,  smokes,  smells  and 
stenches,  and  was  rendered,  on  the  said  several  days  and 
tim.es  aforesaid,  and  became  and  was  and  still  is,  corrupted, 
offensive,  unwholesome,  unhealthy  and  uncomfortable,  and 
the  said  plaintiff  hath  thereby  been,  and  still  is,  greatly 
annoyed  and  incommoded  in  the  use,  possession,  occupa- 
tion and  enjoyment  of  thn  said  messuage  or  dwelling-house 
and  premises,  and  hath  been,  and  is,  by  means  of  the  com- 
mitting of  the  grievances  aforesaid  by  the  said  defendant  as 

Mar.  0,  1884),  Pope  v.  N<;j,'uh  (14  Civ.  Cohii  v.  Kauffrnan  (Daily  Rejf.,  April 

Pro.    R.,  40(j),  PritHch  v.  Hc.hli<:ht    (.'>  30,  1SS4). 

State  Rep.,  871),  Rheehan  v.  Bradford,         '  See  note  2  to  form  No.  122. 
etc.,  R.  R.  Co.  (15  Civ.  Pro.  R.,  429). 

107 


850  Forms  Relating  to 

aforesaid,  otherwise  greatly  damnified  and  injured,  to  wit : 

to  the  amount  of dollars,  for  which  amount,  etc. 

[prayer  for  judgment].' 

M.  F.,  Plaintiff^  s  Attorney. 
[Office  address.'] 
[Verification  as  in  forms  Nos.  151,  etc.] 


Article  Fifth, 
forms  relating  to  miscellaneous  actions  and  rights 

OF  ACTION. 
(Code  Civ.  Pro.,  Ch.  15,  Tit.  4,  Art.  5.) 

No.  951.  Complaint  in  action  to  set  aside  security  as  usurious, 

952.  Affidavit  to  apply  for  leave  to  sue  upon  a  judgment. 

953.  Notice  of  motion  for  leave  to  sue  upon  a  judgment. 

954.  Order  granting  leave  to  sue  upon  a  judgment. 

955.  Complaint  in  action  upon  judgment  of  court  of  record. 

956.  Complaint  on  a  judgment  rendered  by  a  justice  of  the  peace. 

957.  Complaint  on  bond  for  payment  of  money. 

958.  Same,  setting  forth  breaches  of  condition. 

959.  Complaint  on  bond  other  than  for  payment  of  money. 

960.  Complaint  on  bond  to  perform  covenants  in  another  instrument. 

961.  Complaint  on  bond  for  annuity. 

962.  Complaint  by  accommodation  maker  of  note,  who  has  paid  the 

same. 

963.  Complaint  by  guarantor  against  original  debtor  after  payment  of 

debt. 

964.  Complaint  on  a  promise  to  save  surety  harmless. 

965.  Complaint  on  a  guaranty. 

966.  Undertaking  in  action  upon  lost  negotiable  paper. 

967.  Complaint  against  maker  of  note. 

968.  Complaint  against  maker  and  indorser  of  note. 

969.  Complaint  on  check  by  payee  against  maker. 

970.  Same,  by  bearer  against  drawer. 

971.  Same,  against  maker  and  indorser. 

972.  Complaint  on  bill  of  exchange  by  drawee  against  acceptor. 

973.  Same,  by  endorsee  against  acceptor. 

974.  Same,  by  acceptor  against  drawer. 

975.  Same,  against  acceptor,  drawer  and  indorser. 

976.  Same,  again.st  maker  for  non-acceptance. 

977.  Complaint  on  foreign  bill  by  drawer  or  indorser  against  acceptor. 

978.  Same,  by  indorsee  against  drawer. 

979.  Same,  by  indorsee  against  acceptor,  supra  protest. 


*  As  to  action  for  nuisance,  see  Code     2,  p.  621,  to  that  form,  and  Spring  v.. 
Civ.  Pro.,  §§  1660-1664,  and  see  form     D.,  L.  &  W.  R.  Co.  (88  Hun,  385). 
No.  741,  and  notes  3,  p.  620,  and  1  and         ^  See  note  2  to  form  No.  122. 


Miscellaneous  Actions.  851 

No.  980.  Complaint  for  work,  labor  and  services. 

981.  Complaint  for  fees  of  attorney,  etc. 

983.  Complaint  for  bill  of  a  surgeon  or  physician. 

983.  Complaint  for  work,  labor  and  materials  in  building  I101N& 

984.  Complaint  for  goods  sold  and  delivered. 

985.  Complaint  on  account  stated. 

986.  Complaint  for  use  and  occupation. 

987.  Complaint  for  money  had  and  received. 

988.  Complaint  for  money  lent. 

989.  Complaint  on  undertaking  given  on  appeal. 

990.  Complaint  by  executor  on  policy  of  life  insurance. 

991.  Complaint  on  policy  of  insurance  of  goods,  etc. 

992.  Answer  alleging  non-compliance  with  conditions  of  the  poliqr. 

993.  Complaint  against  lessee  for  rent. 

994.  Complaint  for  non-delivery  of  goods  sold. 

995.  Complaint  for  trespass  in  taking  goods. 

996.  Complaint  on  a  covenant  of  quiet  enjoyment  in  a  deed. 

997.  Complaint  on  covenant  of  seisin. 

998.  Complaint  under  civil  damage  act. 

999.  Complaint  against  mechanic  for  doing  his  work  badly. 

1000.  Complaint  for  breach  of  warranty  of  a  horse. 

1001.  Answer,  coverture  of  defendant. 

1002.  Answer  of  infancy  of  plaintiff  or  deft, 

1003.  Answer  of  duress. 

1004.  Answer  of  release. 

1005.  Answer  of  paj^ment. 

1006.  Answer  of  accord  and  satisfaction. 

1007.  Answer  of  discharge  under  the  insolvent  act. 

1008.  Answer  of  usury. 

1009.  Answer  of  usury  to  action  by  an  indorser  against  drawer  of  a 

bill,  etc. 

1010.  Answer  that  note  was  given  to  compoimd  a  felony. 

1011.  Answer  that  plaintiff  is  not  a  corporation. 

1012.  Answer  that  note  was  given  for  gambling. 

1013.  Answer  of  statute  of  frauds  on  a  guaranty. 

1014.  Answer  of  arbitrament  and  award. 

1015.  Answer  of  judgment  recovered. 

1016.  Answer  claiming  set-off. 


No.  951. 
Complaint  in  Action  to  Set  Aside  Security  as  Usurious. 

(Code  Civ.  Pro.,  §  1911;  Laws  1837,  ch.  430.) 

[Title  of  cause.] 

The  plaintiff  complains  of  the  defendant  and  alleges,  tliat 
heretofore  and  on,  etc.,  the  plaintiff,  A.  B.,  applied  to  this 
defendant  for  a  loan  of  money. 


862  Forms  Relating  to 

That  thereupon  and  on  the day  of ,  18 — , 

the  defendant  loaned  to  the  plaintiff,  A.  B.,  the  sum  of 
^1,000,  under  and  in  pursuance  of  and  subject  to  the  terms 
of  the  following  agreement,  which,  at  or  about  the  time  of 
the  plaintiff's  procuring  said  loan,  was  executed  [or  made] 
by  the  i)arties  to  this  action,  to  wit:  that  the  said  i)laindff 
should  pay  and  the  defendant  should  reserve  and  secure  to 
liiniself  for  the  loan  of  the  said  sum  of  $1,000,  a  greater 
sum  than  at  the  rate  of  [six]  per  centum  per  annum,  to  wit, 
the  sum  of dollars  in  addition  to  said  interest. 

That  at  the  time  the  defendant  made  the  said  loan  to  the 
said  plaintiff,  he  required  and  obtained  of  the  plaintiff  the 
following  security  for  the  repayment  of  the  said  loan,  to 
wit  [a  bond  to  be  executed  by  the  said  plaintiff,  and  a 
mortgage  to  be  executed  by  the  said  plaintiff  and  his  wife, 
the  plaintiff,  M.  B,,  upon  the  property  described  as  follows, 
to  wit  (describing  same)],  which  said  [bond  and  mortgage] 
were  [resj)ectively]  executed  as  aforesaid  [and  duly  ac- 
knowledged, and  delivered  to  said  defendant  as  security  for 
the  repayment  of  the  said  amount,  and  said  interest  and 

charges  as  agreed,  and  said  mortgage  is  recorded  in 

county  clerk's  office  in  book  of  mortgages  number , 

at  page ,  on  the day  of ,  18 — ]. 

And  plaintiff  further  alleges,  that  said  agreement  is  in  all 
respects  corrupt,  illegal  and  usurious  and  was  made  con- 
trary to  [or  with  the  illegal  and  corrupt  intent  to  evade] 
the  statute  in  such  case  made  and  provided. 

That  the  mortgage  aforesaid  is  a  cloud  uj^on  the  title  of 
the  plaintiffs  to  the  premises  therein  mentioned  and  an  insur- 
mountable obstacle  to  the  sale  of  the  said  house  and  lot,  or 
the  obtaining  a  loan  thereon,  and  is  a  great  injury  and 
damage  to  the  plaintiffs. 

[That  these  plaintiffs  have,  before  the  commencement  of 
this  action,  offered  to  pay  to  the  defendant  $1,000  and 
interest  at  the  rate  of  six  per  centum  per  annum  upon  that 
sum  for  the  time  of  the  loan,  which  the  defendant  refused 
to  receive,  and  these  plaintiffs  now  offer  to  repay  to  the 
said  defendant  the  said  sum  of  $1,000,  loaned  by  him  to  the 
said  Dlaintiff.  A.  B.«  and  six  per  cent  interest  on  the  same 


Miscellaneous  Actions. 


853 


from  the  time  he  borrowed  the  money,  and  will  for  that 
purpose  bring  the  same  into  court.'] 

That  these  plaintiffs  are  unable  to  obtain  complete  and 
adequate  redress  except  in  this  action. 

Wherefore  the  plaintiffs  pray  that  the  [bond  and]  mort- 
gage set  forth  in  the  complaint  be  declared  null  and  void, 
and  that  the  defendant  be  required  by  the  judgment  in  this 
action  to  deliver  up  to  the  plaintiffs  the  [bond  and]  mort- 
gage aforesaid,  and  that  the  same  be  cancelled,  and  that 
the  defendant  be  decreed  to  satisfy  the  said  mortgage  of 
record,  and  that  the  defendant  be  perpetually  enjoined  and 
restrained  from  enforcing  the  said  mortgage  at  law  or  in 
equity,  and  from  selling,  parting  with  or  incumbering  in 
any  manner  the  said  mortgage,  and  that  the  plaintiffs  may 
have  such  further,  etc." 

[Signature,  etc.,  as  in  form  No.  936. '' 

[Verification  as  in  forms  Nos.  151,  etc.] 


'  The  allegations  iu  brackets  are  not 
necessary  in  the  case  of  a  borrower. 
(See  Laws  of  1837,  ch.  430  [3  R.  S., 
7th  ed.,  2255],  and  Browne  v.  Vreden- 
burgh,  43  N.  Y.,  197). 

It  is,  however,  provided  by  section 
1911,  Code  Civ.  Pro.,  that  a  cause  of 
action  to  cancel,  or  otherwise  affect, 
an  instrument  executed  or  an  act  done, 
as  security  for  a  usurious  loan  or  for- 
bearance, can  be  transferred,  where 
the  instrument  or  act  creates  a  specific 
charge  upon  property,  which  is  also 
transferred  in  disaffirmance  thereof, 
and  not  otherwise  ;  but,  in  that  case, 
the  transferee  does  not  succeed  to  the 
right,  conferred  by  statute  upon  the 
borrower,  to  procure  relief,  without 
paying,  or  offei-ing  to  pay,  any  part  of 
the  sum  or  thing  loaned. 

By  inserting  allegations  of  a  transfer 
of  the  security  as  required  by  the 
statute  and  inserting  the  words  in 
brackets  this  form  will  answer  for 
such  a  complaint.  (See,  also,  Whee- 
lock  V.  Lee,  64  N.  Y.,  242 ;  Tiedeman 
V.  Ackerman,  16  Hun,  307.) 


See  further,  as  to  action  to  set  aside 
instrument  for  usury,  Tyng  v.  Com- 
mercial Warehouse  Co.  (58  N  Y.,  308), 
Allerton  v.  Belden  (49  id.,  373),  Whee- 
lock  V.  Lee  (supra,  p.  247),  Bucking- 
ham V.  Corning  (91  N.  Y.,  525),  Wright 
V.  Clapp  (28  Hun,  7),  O'Brien  v  Fer- 
guson (37  id.,  368),  Marx  v.  Tailer  (27 
Week.  Dig.,  71),  Richards  v.  Luding- 
ton  (60  Hun,  135),  Dickerson  v.  Valen- 
tine (6  N.  Y.  Supp.  540),  Palmer  v. 
Jones  (69  Hun,  240). 

'  It  is  held  in  Allerton  v.  Belden, 
supra,  that  the  fact  that  a  party  has 
made  an  agreement  or  given  a  security 
which  is  void  for  usury,  is  not  suffi- 
cient to  entitle  him  to  apply  to  a  court 
of  equity  to  have  the  contract  annulled. 
The  right  to  this  relief  exists  only 
when,  fi-om  the  form  of  the  security, 
the  defense  cannot  be  made  available 
at  law,  or  where  the  instrument 
sought  to  be  avoided  is  a  cloud  upon 
the  title  1o  land,  or  some  other  neces- 
sity for  the  interi)Osition  of  a  court  of 
equity  is  shown. 


854  Forms  Relating  to 

No.  952. 
Affidavit  to  Apply  for  Leave  to  Sue  upon  a  Judgment. 

(Code  Civ.  Pro.,  §  1913.) 

[Title  of  cause.] 
County  of ,  ss.: 

A.  B.,  of  ,  being  duly  sworn,  says,  tbat  on  the 

day  of ,  18 — ,  a  judgment  was  rendered  in 

the  Supreme  Court  of  the  State  of  New  York  [or  name 
other  court ;  or  by  H.  F.,  a  justice  of  the  peace  for  the 

town  of ,  in  the  county  of ]  for  the  sum  of 

dollars  and cents  damages,  and '— 

dollars  and cents  costs,  in  favor  of  this  deponent 

and  against  said  C.  D.,  the  judgment  roll  whereupon  was 

iiled  in  the county  clerk's  office  on  the ■  — 

day  of ,  18 —  [and  a  transcrij)t  whereof  was  filed 

and  said  judgment  duly  docketed  in  the county 

clerk's  office,  on  the day  of ,  18 — ].' 

That  said  judgment  was  rendered  upon  filing  the  report 
of  E.  F.,  duly  appointed  in  said  action  as  referee,  to  hear 
and  determine  the  same  [or  upon  filing  the  decision  of  Hon. 

A.  O.,  a  justice  {or  judge)  of  said court ;  or  uj)on 

the  verdict  of  a  jury  rendered  in  said  action  ;  or  upon  the 
default  of  the  said  defendant  to  appear  (or  answer)  therein, 
upon  personal  service  of  the  summons  in  said  action  ujoon 
him  ;  or  state  other  authority  for  entry  of  judgment,  so  as 
to  show  that  the  case  is  not  excepted  by  subdivision  1  of 
section  1913],'^  and  is  wholly  unpaid  [or,  is  unpaid  to  the 

amount  of dollars],  with  interest,  etc. 

That  at  or  after  the  time  of  the  rendition  of  said  judg- 
ment, the  said  defendant  was  the  owner  of  certain  real 
estate  situated  in  the  county  of ,  and  that  the  lien 

*  No  apiilicaliou   need   be  made  to  the  judgment  roll  is  tile<l.     Stie  Harris 

hring  a  suit  upon  the  judgment  of  a  v.  Clark  (65  Hun,  3G1),  following  Dief- 

justice'a  court,  or  other   court  not  of  fenbach   v.    Roch    (112   N.    Y.,    621), 

record,   uiiU^.^s  it  has  been  made  the  decided    Bubaequent    to    Baldwin    v. 

judgment  (if  the  county  court  (or  court  Roberts  (supra),  that  section  1913  of 

of  common  pleas)  by  filing  a  transcript  Code  Civ.  Pi'o.    does  not   apply  to  a 

in   the    county    clerk's    office.     After  judgment  rendered  by  a  justice's  court 

such  transcript  has  been  iiled,  an  ap-  ami   docketed  in   the   county   clerk's 

plication  becomes  necessary,  as  in  the  office.     See,  also,  Herman  v.  Stalp  (15 

case  of  other  judgments  of  courts  of  Daly,  292).     See,  also,  amendments  to 

record.     (Baldwin  v.  Roberts,  30  Hun,  sections  376  and  3017  Code  Civ.  Pro., 

163  ;  S.  C,  17  Week.  Dig.,  239.)     It  referred  to  in  note  1  to  form  No.  956. 

may  be  material,  also,  in  other  cases,  *  The  statements  as  to  manner  of  en- 

to  state  the  filing  of  transcript;  e.  g.,  try  of  judgment,  and  as  to  filing  judg- 

where  it  is  desired  to  show  the  judg-  ment   roll,    only  apply  to  judgments 

ment  to  be  a  lien  upon  real  property  originally  entered  in  courts  of  record, 
in  a  county  other  than  that  in  which 


Miscellaneous  Actions.  855 

of  said  judgment  upon  said  real  estate  is  about  to  expire 
[or  state  otlier  reasons  why  leave  is  desired  to  sue  upon  the 
judgment]. 

[That  personal  service  of  notice  of  motion  for  leave  to 
sue  upon  said  judgment  cannot,  in  the  opinion  of  this  de- 
ponent, be  made  upon  (said  defendant)  with  due  diligence^ 
for  the  following  reasons  (state  same).'] 

A.  B. 

[Jurat  as  in  form  No.  46.] 


No.  953. 

Notice  of  Motion  for  Leave  to  Sue  upon  a  Judgment. 

As  in  form  No.  170,  on  motion  to  the  court,  to  [*],  and 
from  thence  as  follows  :  Ui3on  the  affidavit  hereto  annexed 
for  an  order  granting  leave  to  the  iDlaintiff  to  bring  an  ac- 
tion against  the  defendant  upon  the  judgment  mentioned 
and  described  in  said  affidavit  [with  costs  of  this  motion]^ 
and  for  such  other  and  further  relief  as  may  be  proper.' 

Dated ,  18—. 

Yours,  etc., 

M.  N.,  Plaintiff'' s  Attorney. 
[Office  address.'] 
To  T.  R.,  etc. 


No.  954. 
Or(ter  Granting  Leave  to  Sue  upon  a  Judgment. 

(Code  Civ.  Pro.,  §  1913.) 

[At,  etc.,  as  in  form  No.  80.] 
[Title  of  cause.] 
On  reading  and  filing  the  affidavit  of  A.  B.,  dated  — 


18 — ,  and  [name  any  other  motion  papers],  witli  proof  of 

"The  court  may  direct  in  what  man-  its  necessity,  see  notes  to  forms  Nos. 

ner  notice  of  the  motion  maybe  given,  955,  956,  and  see  Tufts  v.  Braiste<l  (4 

if  it  appears  that  i)ersonal  service  can-  Duer,  607-;  S.  C,  1  Abb.,  83),  Finch 

not  be  made  with  due  diligence  upon  v.  Carpenter  (5  Abb.,  225),  Clai-k  v. 

the  adverse  party,  or  the  person  pro-  Story  (20  Barb.,  29.')),  Harris  v.  Clark 

posed  to  be  made  the  adverae  party.  (05  Hun,  3G1),  cited  on  j).  ^^A,ante,  in 

(Code  Civ.  Pro.,  §  1913,  But)d.  2.)  note    to   form    No.  952;    Freeman    v. 

Generally  as  to  this  application  and  Dutcher  (15  Abb.  N.  C,  431),  McHiitt 


MISCELLANEOUS    ACTIONS. 


855a 


V.  Herrick  (4  Abb.  Pr.,  441),  McGuire 
V.  Gallagher  (2  Sandf.,  402),  "Wells  v. 
Henshaw  (3  Bosw.,  625),  Wheeler  v. 
Dakin  (12  How.  Pr.,  537),  Graham  v. 
Scripture  (26  id.,  501),  Nat.  Mechanics' 
Banking  Ass'n  v.  Usher  (1  Sweeny, 
403),  Smith  v.  Britton  (2  T.  &  C,  498), 
Hanover  Fire  Ins.  Co.  v.  Tomlinaon 
(3  Hun,  630),  Parish  v.  Austin  (25  id., 
430),  Church  v.  Van  Buren  (55  How. 
Pr.,  489),  Goodyear  Dental,  etc.,  Co. 
V.  Friselle  (22  Hun,  174),  Baldwin  v. 


Roberts  (30  id.,  163),  Carpenter  v.  But- 
ler (29  id.,  251),  Agar  v.  Tibbetts  (46 
id.,  52),  Spencer  v.  Wait  (9  Civ.  Pro. 
R.,  93),  Morton  v.  Palmer  (39  State 
Rep.,  236),  Merritt  v.  Fowler  (76  Hun, 
424),  Knapp  v.  Valentine  (67  State 
Rep.,  582),  Van  Arsdale  v.  King  (87 
Hun,  617)  ;  see,  also,  note  1,  p.  857, 
post,  to  form  No.  955. 

*  See  notes  to  form  No.  952. 

'  See  note  2  to  form  No.  122. 


856  Forms  Relating  to 

due  service  of  notice  of  motion  upon,  etc.  [as  required  by 

the  order  of  tliis  court,  made  on  the day  of , 

18—],  and  on  reading  and  tiling  [name  any  opposing  papers], 
and  on  motion  of  E.  F.,  of  counsel  for  the  plaintiff,  and 
after  hearing,  etc.  [or  no  one  opposing] : 

It  is  hereby  ordered,  that  leave  be  and  hereby  is  granted 
to  the  plaintiff  to  bring  an  action  against  the  defendant 
upon  the  judgment  rendered  in  the  above  entitled  action  in 
the Court  in  favor  of  said  A.  B.  against  said  de- 
fendant on  the day  of ,  18 — ,  for 

dollars,  damages  and  [ dollars  and cents] 

costs.' 


No.  9o5. 
Complaint  in  Action  upon  a  Judgment  of  Court  of  Record. 

(Code  Civ.  Pro.,  §  1913.) 

[Title  of  cause.] 

The  complaint  of  the  above  named  plaintiif  respectfully 
shows,  that  on  the day  of ,  18 — ,  a  judg- 
ment [*]  was  duly  rendered  in  the  [Supreme  Court  of  the 
State  of  New  York],  in  an  action  pending  therein  between 
the  above  named  A.  B.,  as  j)laintiff,  and  C.  D.,  as  de- 
fendant, in  favor  of  the  said  A.  B.  and  against  the  said  C. 
D.,  for  the  sum  of dollars  and cents,  dam- 
ages and  costs,  which  said  judgment  still  remains  in  full 
force  and  effect,  and  not  reversed,  satisfied  or  otherwise 
vacated. 

[That  said  judgment  was  rendered  against  the  said  defend- 
ant by  default  for  want  of  an  appearance  (or  answer,  etc.), 
the  summons  therein  having  been  served  upon  the  said  C.  D. 

by  publication  thereof,  pursuant  to  the  order  of  the 

Court  therefor,  made  on  the day  of ,  18 — 

{or  state  other  method  of  service,  other  than  personal).'] 

That  the  said  [Supreme]  Court,  by  an  order  duly  made 

at  a  Special  Term  thereof,  held  at  the of , 

on  the day  of ,  18 — ,  granted  leave  to  the 

'  See  notes  to  form  No.  952.  ant  to  subd.  1  of  section  1913,  Code 

'  Insert  or  omit  the  clause  in  brack-     Civ.  Pro. 
ets  where  tlie  facts  require  it,  pursu- 


Miscellaneous  AcTio?fS. 


857 


plaintiff,  upon  his  application  therefor,  to  bring  an  action 
upon  said  judgment  against  the  said  C.  D.' 

Wherefore  the  plaintiff  prays  judgment  against  the  de- 
fendant for  the  sum  of dollars,  with  interest  there- 
upon from  the day  of ,  18—,  besides  the 

costs  of  this  action." 

M.  F.,  Plaintiff's  Attorney. 
[Office  address.'] 
[Verification  as  in  forms  Nos.  151,  etc.] 


'  It  is  necessary  to  set  forth  the 
leave,  statins'  how,  when  and  from 
whom  obtained.  (Graham  v.  Scrip- 
ture, 26  How.,  uOl  ;  Smith  v.  Britton, 
45  id.,  42S  ;  Hall  v.  Taylor,  8  id.,  428; 
liut  see  Prince  v.  Cujas,  7  Robt.,  76  ; 
Pinch  V.  Carpenter,  5  Abb.,  225.) 

It  is  held  in  Farish  v.  Austin  (25 
Hun,  430),  that  the  failure  to  obtain 
leave  is  fatal  to  a  judo-ment  rendered 
in  the  action  ;  but  in  German  Savings 
Bank  v.  Carring-ton  (14  Week.  Dig., 
475  [Supr.  Ct.,  Gen.  Tm.],)it  is  said 
that  obtaining  leave  is  not  a  jurisdic- 
tional requirement,  citing  Smith  v. 
Britton  (2  N.  Y.  Supr.  Ct.  [T.  &  C], 
498),  McKernan  v.  Robinson  (S4  N. 
Y.,  i05),  in  which  latter  case  an  order 
granting  leave  to  bring  the  action 
granted,  nunc  pro  tunc,  in  the  action 
was  sustained.  See,  also,  Earle  v. 
David  (S6  N.  Y.,  634),  which  was  an 
action  to  recover  for  a  deficiency  aris- 
ing on  foreclosure  sale,  to  bring  which, 
permission  of  the  court  is  required  by 
2  R.  S.,  191,  §  153,  et  seq.,  and  which 
was  commenced  without  such  permis- 
sion, and  the  defendant  demurred  to 
the  complaint,  the  demurrer  was  sus- 
tained, but  thereafter  the  court,  upon 
plaintiif's  application,  gave  plaintiff 
permission  to  amend,  and  to  bring  and 
continue  the  action  "  without  jirejudice 
to  the  proceedings  already  had."  The 
complaint  was  thereupon  amended, 
and  upon  a  second  demurrer  was  held 
sufhcient,  the  court  citing,  McKernan 
V.  Robinson  {t^wpra).  See,  also,  Mc- 
Parland  v.  Bain  (26  Hun,  38,  45), 
Church  V.  Van  Buren  (55  How.  Pr., 
489) ;  and  see  note  1,  p.  855,  to  form 
No.  952. 

'  As  to  what  may  be  set  up  in  defense 
of  an  action  on  a  judgment,  see,  amoDg 


other  cases,  Dobson  v.  Pearce  (12  N. 
Y.,  156),  Mandeville  v.  RejTiolds  (68 
id.,  528),  Revere  Copper  Co.  of  Boston 
V.  Dimmock  (90  N.  Y.,  33),  Green  v. 
Hallenbeck  (32  Hun,  469),  Patrick  v. 
Shaffer  (94  N.  Y.,  423).  Trebilcox  v. 
McAlpine  (62  Hun,  317),  Blank  v. 
Blank  (107  N.  Y.,  91),  Mather  v. 
Parsons  (32  Hun,  338),  Ward  v.  Town 
of  Southfield  (102  N.  Y.,  287),  Hel- 
burn  V.  Rosenson  (2  State  Rep.,  618), 
Stevens  v.  Union  Trust  Co.  (57  Hun, 
49S),  Stillwell  v.  Carpenter  (59  N.  Y., 
414),  Mavor,  etc.,  of  N.  Y.  v.  Brady 
(115  id.,  599),  White  v-  Reid  (70  Hun, 
197). 

It  was  held,  in  Goodyear  Dental 
Vulcanite  Co.  v.  Friselle  (22  Hun,  174), 
under  §  71  Code  Pro.,  that  an  action 
could  be  maintained  without  leave  of 
the  court,  upon  a  judgment  of  a  United 
States  Circuit  Court  within  this  State, 
although  such  judgment  had  been 
docketed  in  a  county  clerk's  office,  as 
provided  by  the  provision  of  the  Code 
of  Procedure  corresponding  to  section 
1271  of  the  Code  of  Civ.  Pro.,  which 
section  was  repealed  in  1879.  See,  also, 
Morton  v.  Palmer  (39  State  Rep.,  236). 

The  mere  averment  that  a  judgment 
has  been  recovered  in  anotlier  State, 
followed  by  the  avei-nient  of  its  assign- 
ment to  the  plaintiff,  is  not  sufficient, 
in  the  absence  of  any  further  allega- 
tions, to  make  out  a  cause  of  action. 
(Horton  v.  Shipherd,  14  Week.  Dig., 
453  [Gen.  Tm.  Supr.  Ct.].) 

As  to  the  cases  in  which  the  prohibi- 
tion of  section  1628,  Code  Civ.  Pro., 
against  suit  without  leave  of  the  court 
is  ajiplicable,  see  Wyckoff  v.  Devlin 
(17  Week."  Dig.,  467). 

•  See  note  2  to  form  No.  122. 


858 


Forms  Relating  to 


No.  95C. 

Complaint  on  a  Judgment  Rendered  by  a  Justice  of  the 

Peace. 

(Code  Civ.  Pro.,  §  1913.) 

As  in  form  No.  955  to  ['^J,  iind  from  thence  as  follows : 
"Was  duly  rendered  by  M.  N.,  a  justice  of  the  peace  of  the 

town  of ,  in  the  county  of ,  for  the  sum  of 

■ dollars,  in  favor  of  the  plaintiff  and  against  the 

defendant,"  which  said  judgment  still  remains  in  full  force 
and  effect  and  not  reversed,  satisfied  or  otherwise  vacated. 

Wherefore  the  plaintiff  prays  judgment  against  the  de- 
fendant for  [amount  of  judgment],  with  interest  thereupon 

from  the  — day  of ,  18 — ,  together  with  the 

costs  of  this  action. 

[Signature,  etc.,  as  in  form  No.  955.] 


No.  957. 
Complaint  on  Bond  for  Payment  of  Money. 

(Code  Civ.  Pro.,  §  1915.) 

[Title  of  cause.] 
The  plaintiff  complains  of  the  defendant  and  alleges,  that 


*  In  pleading  a  judgment,  or  other 
determination,  of  a  court  or  officer  of 
special  jurisdiction,  it  is  not  necessary 
to  state  the  facts  conferring  jurisdic- 
tion; but  the  judgment  or  determina- 
tion may  be  stated  to  have  been  duly 
given  or  made.  If  that  allegation  is 
controverted,  the  party  pleading  must, 
on  the  trial,  establish  the  facts  confer- 
ring jurisdiction.  (Code  Civ.  Pro.,  § 
532.) 

By  the  filing  of  a  transcript  of  a  jus- 
tice's judgment  in  the  county  clerk's 
office,  it  becomes  the  judgment  of  the 
county  court.  After  such  filing  an  ac- 
tion cannot  be  brought  upon  it  in  the 
justice's  court,  but  must  be  brought  in 
a  court  of  record  upon  leave  first  ob- 
tained from  the  court  in  which  it  is 
brought.  (Baldwin  v.  Roberts,  30 
Hun,  163.)  But  see  note  1,  p.  854,  to 
form  No.  952,  in  regard  to  effect  of 
filing  transcript  of  justice's  judgment. 


In  an  action  upon  a  judgment  of  a 
justice  of  the  peace,  brought  in  the 
county  wherein  it  was  rendered,  within 
five  years  after  the  rendition  thereof, 
against  a  defendant  upon  whom  the 
summons  was  personally  served,  no 
costs  can  be  recovered,  except  where 
the  justice  who  rendered  the  judgment 
is  dead,  or  out  of  office,  or  otherwise 
incapable  of  acting ;  or  has  removed 
from  the  county;  or  where  one  of  the 
parties  has  died;  or  where  the  docket 
of  the  judgment  has  been  lost  or  de- 
stroyed.    (Code  Civ.  Pro.,  §  3154.) 

As  to  what  defenses  may  be  set  up, 
see  cases  referred  to  in  the  last  para- 
graph of  note  2  to  form  No.  955. 

A  judgment  rendered  by  a  justice  of 
the  peace  outlaws  from  the  time  of  its 
rendition,  and  not  from  the  time  of  its 
docketing  in  the  county  clerk's  office. 


Miscellaneous  Actions.  859 

heretofore,  on  the day  of ,  18 — ,  the  said 

defendant  by  his  certain  bond  or  writing  obligatory,  dated 
on  that  day  and  sealed  with  his  seal,  acknowledged  himself 
to  be  held  and  firmly  bound  unto  the  said  plaintiff  in  the 
sum  of  [one  thousand]  dollars,  to  be  paid  to  the  said  plain- 
tiff [*]  [on  the day  of ,  18—]  ;  yet  the  said 

defendant  [although  often,  and  particularly  on  the 

day  of ,  18—,  requested  so  to  do]  hath  not  as  yet 

paid  the  said  sum  of  one  thousand  dollars,  or  any  part 
thereof,  to  the  said  plaintiff,  but  hath  hitherto  wholly  neg- 
lected and  refused,  and  still  neglects  and  refuses,  so  to  do, 
to  the  damage  of  plaintiff  of  [one  thousand]  dollars. 

Wherefore  plaintiff  demands  judgment  for  the  sum  of 
[one  thousand]  dollars  [with  interest  thereupon  from  the 
day  of ,  18 —  {or  fron^  the  time  of  the  com- 
mencement of  this  action)],'  besides  tlie  costs  of  this  action. 

M.  F.,  Plaintiff's  Attorney. 
[Office  address.'] 

[Verification  as  in  forms  Nos.  151,  etc.] 


No.  958. 

Complaint  ou  Bond  for  Payment  of  Money,  Setting  forth 
Breaches  of  Condition. 

(Code  Civ.  Pro.,  g  1915.) 

As  in  form  No.  697,  including  the  condition  of  the  bond, 

An  action  should  therefore  be  brought  defendant  made  default  in  the  per- 

upon  it,  under  subd.  4  of  section  382  formance  of  the  condition.     (Code  Civ. 

of  Code   Civ.  Pro.,  within   six   years  Pro,  §19ir).) 

after  its  date  and  not  after  it3  docket-  As  to  what  constitutes  a  bond  for 

ing.     (Slocum  v.   Stoddard,  20  Week,  the  jjayraent  of  money,  see  Lyon  v. 

Dig.,  556.)     See  amendments  by  ch.  Clark  (8  N.  Y.,  148),  Beera  v.  Shannon 

307  of  Laws  of  1894,  to  sections  376  (73  id.,  292  ;  rev'g  S.  C,  12  Hun,  161), 

and   3017   of  Code  of  Civ.    Pro.,   by  Emerson  v.  Booth  (51  Barb.,  40). 

which  these  judgments  when  docketed  If  no  time  of  payineiit  is  tixed  the 

in  county  clerk's   office   become   out-  time  of  a  demand  should  be  alleged, 

lawed  in  like  manner  as  judgments  of  if  made,  as   the   interest   would  run 

courts  of  record,  that  is,  after  the  ex-  from  that  time.     (Ban-y  v.  Ransom,  12 

piration  of  twenty  years  from  the  time  N.  Y.,  463,  465  ;  Warren  v.  Wheeler, 

when  the  party  recovering  the  judg-  8  Mete,  97.) 

ment  was  first  entitled  to  a  mandate  If  no  demand  has  been  made  in  such 

to  enforce  it.  case   previous   to    the    action,  interest 

'The  damages  to  be  recovered  for  a  should  be  claimed  from  the  time  of  its 

breach,  or  successive  breaches,  of  the  commencement,  as  that  is  e<piivalent 

conilition  of  a  bon<l  for  the  i)ayment  to  a  ilemand.     (White  v.  Miller,  78  N. 

of  money  cannot  in  the  aggregate  ex-  Y..  393,  and  cases  there  cited.) 

(•end    the    penal    sum,    with    interest  'See  note  2  to  form  No.  122. 
thereupon,   from    the    lime   when    the 


880  Forms  Relating  to 

and  from  thence  as  follows :  And  the  plaintiff  further  shows^ 
that  the  said  defendant  lias  failed  to  comply  with  the  con- 
dition of  the  said  bond,  by  omitting  to  pay  the  sum  of 

dollars,  wdiicli,  by  the  terms  and  conditions  of  said 

bond,  became  due  on  the day  of ,  18—. 

Wherefore  the  plaintiff  demands  judgment  against  the 

defendant  for  the  sura  of dollars,  with  interest 

thereupon  from  the day  of ,  18—,  besides 

the  costs  of  this  action.' 

M.  F.,  Plaintiff'' s  Attorney. 

[Office  address."] 

[Yerification  as  in  forms  Nos.  151,  etc.] 


No.  959. 
Complaint  ou  Bond  other  than  for  the  Payment  of  Money. 

(Code  Civ.  Pro.,  §  1915.) 

As  in  form  No.  957  to  ["^J,  and  from  thence  as  follows : 
That  the  said  bond  was,  and  is,  subject  to  a  certain  condi- 
tion thereunder  written,  whereby  [if  there  be  any  recital, 
add,  "after  reciting  to  the  effect  that,"  etc.,  and  state  the 
recital],  it  is  provided  that,  etc.  [state  the  condition],  then 
the  said  obligation  to  be  void,  otherwise  to  be  and  remain 
in  full  force  and  effect.  Nevertheless,  the  said  plaintiff 
alleges  that,  after  the  making  of  the  said  bond,  to  wit :  on 

the day  of ,  18 — ,  the  said  defendant  [state 

the  breach,  and  if  more  than  one,  proceed  as  follows : 
And  the  said  plaintiff  for  assigning  a  further  breach  of  the 
said  condition  of  the  said  bond,  further  says,  that,  etc.  (state 
further  breach)]. 

By  means  of  which  said  several  premises,  the  said  plain- 
tiff has  sustained  damages  to  the  amount  of  [five  hundred] 

dollars.     Yet  the  said  defendant  [although  on  the 

day  of ,  requested  so  to  do],  has  not  as  yet  paid 

the  said  sum  of  [five  hundred]  dollars,  or  any  part  thereof, 
to  the  said  plaintiff,  but  has  hitherto  neglected  and  re- 
fused, and  still  neglects  and  refuses,  so  to  do.' 

'  See  notes  to  form  No.  957.  *  See  notes  to  form  No.  957.  and  for 

'  See  note  2  to  form  No,  123.  forms  relating  to  actions  on  official 

bonds,  see  forms  Nos.  881,  etc. 


Miscellaneous  Actions.  8o1 

Wherefore,  etc.  [prayer  for  judgment  as  in  form  No.  957]. 

[Signature,  etc.,  as  in  last  form.] 
[Verification  as  in  forms  Nos.  151,  etc.] 


No.  960. 

Complaint  on  Bond  to  Perform  Covenants  in  Another 
Instrnmeut. 

(Code  Civ.  Pro.,  i^  1915.) 

As  in  form  No.  957  to  [^'],  and  from  thence  as  follows : 
And  the  said  plaintiff  says,  that  the  said  bond  was  made 
with  a  condition  thereunder  written,  that  if  [set  out  the 
condition  merhatini]  the  above  bounden  defendant  did  well 
and  truly  observe,  etc.,  all  and  singular  the  covenants,  etc., 
whatsoever,  which,  on  tlie  i)art  of  the  said  defendant,  were 
or  ought  to  be  observed,  etc.,  in  a  certain  indenture  bearing 
even  date  with  the  said  bond,  and  made  between  the  said 
plaintiff  of  the  one  part  and  the  said  defendant  of  the  other 
part,  according  to  the  true  intent  and  meaning  of  the  said 
indenture,  then  the  said  obligation  was  to  be  void,  etc. 

And  the  said  plaintiff  further  says,  that  by  the  said  in- 
denture, in  the  condition  of  the  said  bond  mentioned,  he 
did  demise  into  the  said  defendant,  all  that,  etc.  [here  set 
out  the  demise,  and  such  of  the  covenants  as  have  been 
broken  and  assign  breaches  of  them  and  conclude  as  in 
form  No.  957,  from  "by  means  of,"  etc.]. 

[Signature,  etc.,  as  in  form  No.  958.] 

[Verification  as  in  forms  Nos.  151,  etc.] 


No.  961. 
Complaint  on  Bond  for  Annuity. 

(Code  Civ.  Pro.,  §  1915.) 

[Set  out  bond  and  condition  and  then  proceed  as  follows :] 
Nevertheless  the  said  plaintiff  in  fact  says,  that  after  the 

making  of  the  said  bond,  to  wit,  on  the day  of 

,  18 — ,  a  large  sum  of  money,  to  wit,  the  sum  of 

[two  hundred]  dollars  of  tlie  said  annuity  or  yearly  sum 
of  [eight  hundred]  dollars,  for  one  quarter  of  a  year  then 
elapsed,  became  and  was  due  and  owing  from  the  said  de- 


862  FoEMS  Relating  to 

fendant  to  the  said  plaintiff,  and  still  is  in  arrear  and 
unpaid,  contrary  to  the  form  and  effect  of  the  said  bond, 
and  of  tlie  said  condition  thereof,  by  reason  of  which  said 
breach  the  said  bond  became  forfeited,  yet  the  said  defend- 
ant [althongh  often  and  i^articularly  on  the day  of 

^  18 — ,  requested  so  to  do]  has  not  as  yet  paid  the  said 

sum  of dollars. 

Wherefore,  etc.  [prayer  for  judgment]. 

M.  F.,  Plaintiff's  Attorney. 
[Office  address.'] 

[Verification  as  in  forms  Nos.  151,  etc.] 


No.  962. 

Complaint  by  Accommodation  Maker  of  Promissory  Note 
who  lias  Paid  the  Same. 

[Title  of  cause.] 

The  plaintiff  complains  against  the  defendant  and  alleges, 

that  heretofore,  and  on  or  about  the day  of , 

18 — ,  the  plaintiff  made  his  promissory  note,  of  which  the 
following  is  a  copy,  to  wit  [insert  copy]. 

That  said  note  was  made  at  the  special  instance  and  re- 
quest, and  for  the  accommodation,  of  the  said  defendant^ 
and  that  the  plaintiff  never  received  any  consideration 
therefor,  and  the  defendant  promised  to  pay  the  same  at 
its  maturity. 

That  thereupon  the  said  defendant  endorsed  the  said 
note,  and  the  same  was  by  him,  before  maturity,  trans- 
ferred to  C.  F.  for  a  valuable  consideration. 

That  defendant  did  not  pay  the  said  note,  or  any  part 
thereof,  when  the  same  became  due,  or  at  any  time  there- 
after, and  that  the  plaintiff  was  compelled  to  pay  the  same  \ 

and  on  the day  of ,  18 — ,  did  pay  the  same  to 

the  said  C.  F.,  and  that  defendant  has  not  paid  the  same 
to  the  plaintiff,  or  any  part  thereof.* 

Wherefore,  etc.  [prayer  for  judgment]. 

[Signature,  etc.,  as  in  form  No.  961.] 

[Verification  as  in  forms  Nos.  151,  etc.] 

'  See  note  2  to  form  No.  122.  indorser,   may  recover,  in  an  action 

*  A  surety,  including  a  drawer  or    against  his  principal,  his  reasonable 


Miscellaneous  Actions.  863 

No.  963. 

Complaint  by  Guarantor  against  the  Original  Debtor  after 
Payment  of  Debt. 

[Title  of  cause.] 

The  complaint  of  the  above  named  plaintiff  respectfully 

shows,  that  heretofore,  and  on  or  about  the day  of 

,  18 — ,  the  defendant  made  and  executed  [set  forth 

agreement]. 

That  upon  the  execution  of  said  [name  of  agreement],  the 
plaintiff,  by  an  agreement  in  writing,  guaranteed  the  pay- 
ment \or  j)erformance,  etc.,  according  to  fact]. 

That  [here  state  the  breach  of  his  agreement  by  defend- 
ant], and  that  the  plaintiff  was  obliged  to  i)ay,  and  did  pay, 

on  the day  of ,  18 — ,  to ,  the  amount 

of dollars,  by  reason  of  the  failure  of  the  defend- 
ant to  pay  the  same  \or  state  other  failure  to  perform], 
which  sum  remains  due  and  unpaid  from  defendant  to 
plaintiff. 

Wherefore,  etc.  [prayer  for  judgment].' 

[Signature,  etc.,  as  in  form  No.  961.] 

[Verification  as  in  forms  Nos.  151,  etc.] 


No.  964. 
Complaint  on  a  Promise  to  Save  Surety  Harmless. 

[Title  of  cause.] 

The  complaint  of  the  above  named  plaintiff  respectfully 

shows,   that  the  said  defendant,   on  the day  of 

,  18 — ,  in  considei-ation  that  he,  the  said  plaintiff, 

would,  by  his  bond  or  writing  obligator}-,  bearing  date  on 
the  day  and  year  aforesaid,  become  held  and  firmly  bound 

costs    and    other    expenses,    incuiTed  See,  also,  Thompson  v.  Taylor  (72 

necessarily  and  in  good  faith,  in  the  N.  Y.,  32;  aff'g  S.  C,  11  Hun,  274), 

prosecution  or  defense,  by  the  express  as  to  rules  relating  to  this  action.    Sec- 

or  implied  consent  of  the  principal  of  lion  1916,  xnprn,  is  a  revision  of  sec 

an  action  or  special  proceeding  rclnt-  timi  ;}  of  chapfcr  ;514  of  Laws  of  1858, 

ing  to  the  demand  secured.     This  jiro-  referred  \o  in  that  decision, 

vision    does    not    affect    any    special  '  See  note  2  to  form  No.  963. 
agre(;ment  relating  to  those  costs  and 
expenses.     (Code  Civ.  Pro.,  g  1910.) 


864  FoKMS  Relating  to 

as  surety  for  one  J.  B.  unto  A.  A.  [then  sheriff  of  the 

county  of ],  in  the  penal  sum  of dollars, 

to  be  paid,  etc.  [describing  the  penal  part  of  the  said  bond], 
and  wldch  said  bond  or  writing  obligatory  was  to  contain  a 
certain  condition  that  if,  etc.  [here  set  forth  condition  sub- 
stantially], he,  the  said  defendant,  would  indemnify  and 
save  harmless  him,  the  said  plaintiff,  of,  from  and  against 
all  damages,  costs  and  charges  which  he  might  sustain  or  be 
l")ut  to,  for  or  by  reason  of  his  becoming  security  as  afore- 
said, in  manner  aforesaid,  for  the  said  J.  B.;  and  the  said 
plaintiff  coniiding  in  such  promise  and  undertaking  of  the 
said  defendant  in  manner  aforesaid  made  to  the  said  ijlain- 
tiff,  did,  in  consideration  thereof,  duly  execute  and  deliver 
the  aforesaid  bond  or  writing  obligatory  unto  the  said  A.  A, 

And  the  plaintiff  further  alleges,  that  [here  state  when 
and  in  what  manner  the  plaintiff  was  damnified  in  conse- 
quence of  his  becoming  surety],  of  all  which  the  said  de- 
fendant afterwards,  to  wit,  on,  etc.,  had  due  notice,  but 
that  the  defendant  has  not  paid  the  said  amount  or  any 
part  thereof.' 

Wherefore,  etc.  [prayer  for  judgment]. 

[Signature,  etc.,  as  in  form  No.  961.] 

[Verification  as  in  forms  Nos.  151,  etc.] 


No.  965. 

Complaint  on  a  Griiarauty. 

[Title  of  cause.] 

The  plaintiff  complains  against  the  defendant  and  alleges, 

that  heretofore,  and  on  the day  of ,  18 — , 

in  consideration  that  the  said  plaintiff,  at  the  special  in- 
stance and  request  of  the  said  defendant,  would  sell  and 
deliver  goods,  etc.,  to  the  value,  etc.,  to  one  F.  M.,  he,  the 
defendant,  then  and  there  undertook,  etc.,  to  guaranty 
to  the  said  plaintiff  the  payment  of  the  said  money ;  and 
the  plaintiff  avers  that  he,  confiding  in  the  said  promise, 
etc.,  did  sell,  etc. 

That  said  F.  M.  has  not  paid  the  said  amount,  or  any 

'  See  Hale  v.  Andrus  (6  Cow.,  225). 


Miscellaneous  Actions.  865 

part  thereof,  although  the  time  of  payment  therefor  has 
long  since  expired,  of  which  the  defendant  had  due  notice, 
but  the  defendant  has  not  paid  the  same,  or  any  part 
thereof. 

Wherefore,  etc.  [prayer  for  judgment]. 

[Signature,  etc.,  as  in  form  No.  961.] 

[Verification  as  in  forms  Nos.  151,  etc.] 


No.  966. 
Undertaking  in  Action  upon  Lost  Negotiable  Paper, 

(Code  Civ.  Pro.,  §  1917.) 

[Title  of  cause.] 

Whereas,  it  has  appeared  [or  will  appear]  upon  the  trial 
of  the  above  entitled  action,  that  a  negotiable  promissory 
note  [or  bill  of  exchange]  upon  which  said  action  [or  the 
counterclaim  interposed  in  said  action]  is  founded,  described 
as  follows  [describe  note,  etc.,  as  near  as  may  be],  was  lost, 
while  it  belonged  to  E.  F.,  the  plaintiff  [or  defendant] 
therein. 

Now,  therefore,  we,  A.  B.,  of  ,  by  occupation  a 

,  and  C.  D.,  of ,  by  occupation  a , 

do  hereby  jointly  and  severally  undertake,  pursuant  to  sec- 
tion 1917  of  the  Code  of  Civil  Procedure,  in  the  sum  of 

dollars,'  that  the  said  E.  F.  will  indemnify  the  said 

defendant  [or  plaintiff],  his  heirs  and  personal  representa- 
tives, against  any  claim  by  any  other  person  on  account  of 
the  said  note  [or  bill],  and  against  all  costs  and  expenses 
by  reason  of  such  a  claim.* 

Dated ,  18—. 

A.  B. 

C.  D. 

In  presence  of • . 

[Acknowledgment  or  proof,  justification  and  approval  as 
in  forms  Nos.  340  and  538.] 


The  sum  is  to  be  fixed  by  the  .iud/ye  of  indemnitv,  in  case  of  the  non-pro- 

or  referee,    not   less  than    twice   the  duction  f>f  a  bill  or  note,  and  fo  which 

amount  of  the  note  or  bill.  section  1017  of  C\)dc  (Mvil  Procedure 

'  Tlic  statute  (2  U.  S.,  400,  «8  7r).  7fi)  corresponds,  was  held  to  be  limited  to 

which  rc(|uired  the  giviatj  of  a  bond  cases  of  In'f.  instruments  and  to  have 

100 


866  Forms  Relating  to 

No.  967. 
Complaint  against  Maker  of  a  Note. 

[Title  of  cause.] 

Tlie  above  plaintiff  complains  that  the  above  named  de- 
feiidaiit,  on  the day  of ,  18 — ,  by  his  cer- 
tain promissory  note,  in  writing,  dated  on  that  day,  for  value 
received,  i^romised  to  pay  to  this  plaintiff,  or  his  order,  the 

sum  of dollars  [thirty  days]  from  the  date  thereof 

[with  interest],  and  that  he  lias  not  paid  the  same,  nor  any 
part  thereof,  but  is  justly  indebted  to  the  plaintiff  therefor  ; 
whereupon  the  plaintiff  demands  judgment  against  tlie  said 

defendant  for dollars,  with  interest  thereon  from 

the  day  of ,  18 — ,  besides  costs  of  this 

action. ' 

E.  F.,  Plaintiffs  Attorney. 
[Office  address."] 

[Verification  as  in  forms  Nos.  151,  etc.] 


No.  968. 
Complaint  against  Maker  and  Indorser  of  a  Note. 

[Title  of  cause.] 

The  above  named  plaintiff  complains  that  the  defendant, 

I.  J.,  on  the day  of ,  18 — ,  at ,  by 

his  certain  promissory  note,  in  writing,  dated  on  that  day, 
for  value  received,  promised  to  pay  to  the  defendant,  K.  L. 

no  application  to  the  case  of  a  destroyed  fended  by  the  people  of  the  State,  or 

check  or  note.     (Scott  v.  Meeker,  20  by  a  public  officer  in  their  behalf,  the 

Hun,  161,  and  cases  cited.)  people  or  the  public  officer  may  prove 

That  the  party  need  not  join  in  the  the  contents  of  a  lost  note  or  bill  of 

undertaking,  see  section  811,  Code  Civ.  exchange  by  parol  or  other  secondary 

Pro. ,  and  note  1  to  form  No.  340,  and  evidence,  and  may  recover  or  set  off 

generally  as  to  undertakings,  see  notes  the  amount  due   thereupon,  without 

to  that  form  and  to  form  No.  341.  giving   any   security  to    the  adverse 

See,  also,  Frank  v.  Wessels  (64  N.  Y. ,  party. 

155),  "Wright  v.  "Wright  (54  N.Y.,  437),  '  For  complaint  upon  a  written  in- 

Smith  v.  Young  (2  Barb.,  545),  Des-  strument  for  pajTuent  of  money  only, 

mond  v.  Rice  (1  Hilt.,  530).  by  setting  forth  copy,  see  form  No. 

By  section  1918,    Code  Civ.   Pro. ,  164,  ante,  and  see  notes  to  that  form, 

where  an  action  is  prosecuted  or  de-  "^  See  note  2  to  form  No.  122, 


Miscellaneous  Actions.  867 

or  his  order,  tlie  sum  of dollars  [thirty  days]  from 

tho  date  thereof  [with  interest],  and  the  defendant,  K.  L. 
afterwards,  for  value  received,  indorsed  the  said  note,  and 
the  same  was  thereupon,  for  value  received,  transferred  to 
the  said  plaintiff. 

That  payment  of  said  note  was  duly  demanded  at  ma- 
turity, and  refused,  and  the  same  was  thereupon  duly  pro- 
tested for  non-payment,  and  notice  of  such  demand  and 
refusal  was  duly  given  to  said  indorser,  the  expense  of 
which  protest  was  the  sum  of . 

That  said  defendants  have  never  paid  the  said  note,  or 
any  part  thereof,  but  are  justly  indebted  to  the  plaintiffs 
therefor. 

Wherefore  the  plaintiff  demands  judgment,  against  the 

defendants  for dollars,  with  interest  thereupon 

from  the ■  day  of  ,  18 — ,  besides  costs  of 

this  action,  and  said  notary's  fees.' 

E.  F.,  Plaintiff's  Attorney, 
[Office  address."] 

[Verification  as  in  forms  Nos.  151,  etc.] 


No.  969. 
Complaint  on  Check  by  Payee  against  Maker. 

[Title  of  action.] 

The  above  named  plaintiff  complains  that  the  defendant, 

for  value  received,  on  the day  of ,  18 — , 

made  his  check,  in  writing,  dated  that  day,  directed  to  the 

bank,  and  thereby  directed  and  required  the  said 

bank  to  pay  to  the  [*]  plaintiff  [or  bearer],  on  demand,  the 

sum  of dollars,  and  the  defendant  then  delivered 

the  said  check  to  the  plaintiff. 

And  the  plaintiff  says,  that,  after  the  making  of  the  said 
check,  and  on  the day  of ,  aforesaid,  the 

'  See  note  1  to  form  No.  969,  and  see  (1  Abb.  Ct.  App.  Dec.,  42H;,  Farmers' 

Spell  man  v  "Welder  (5  How.  Pr.,  5),  and  Mechanics'  Rank  of  Genesee  v. 

Spencer  v.  Rofj-ers  Locomotive  Works  Wadsworth  (24  N.  Y.,  r)47),  Van  Duzer 

(]7Abh.,110),  Price  v.Mrriav»'(.3  Abb.,  v.  TIowc  (21  K  Y.,  W^\\ 
2&li  G  Duer,  544),  Conkling  v.  Gandall        "  See  note  2  to  form  No.  122. 


868  Forms  E-elating  to 

said  check  was  presented  to  the  said  bank  and  payment 
demanded  therefor,  but  was  refused;  and  the  said  bank 
have  not  paid  the  said  check,  or  any  part  tliereof,  of  wliicli 
demand  and  non-payment '  defendant  had  due  notice,  the 

expense  whereof  was  the  sum  of dollars  ;  nor  has 

the  defendant  paid  the  said  check,  or  any  part  thereof. 

Wherefore  the  plaintifi'  demands,  etc.  [prayer  for  judg- 
ment as  in  last  form]. ' 

E.  F.,  Plaintiff's  Attorney. 
[Office  address.'] 

[Verification  as  in  forms  Nos.  151,  etc.] 


No.  970. 
Complaint  on  Check  by  Bearer  against  Drawer. 

As  in  form  No.  969  to  Sj'\  and  from  thence  as  follows : 

G.  H.,  or  bearer, dollars,  and  delivered  said  check 

to  the  said  G.  H,,  who  thereupon  transferred  and  delivered 
the  same  to  the  plaintiff  [if  there  was  an  intermediate  trans- 
fer, the  averment  should  be  as  follows :  and  the  said  check 
was  afterwards  duly  transferred  to  the  plaintiff],  and  tlie 
said  plaintifl'  then  became  and  was,  and  is,  the  lawful 
bearer  of  the  said  check.'  And  the  said  bank  did  not  pay 
the  said  check,  although  the  same  was  afterwards,  and  on 

the day  of ,  18 — ,  duly  presented  to  them  for 

payment  thereof,  of  all  which  the  defendant  had  due  notice, 

the  expense  whereof  was  the  sum  of dollars  ;  nor 

has  the  defendant  paid  the  same,  or  any  part  thereof. 

Wherefore,  etc.  [prayer  for  judgment]. 

[Signature,  etc.,  as  in  form  No.  969.] 

[Verification  as  in  forms  Nos.  151,  etc.] 

•  See  Woodbury  v.  Sackrider  (2  Abb.  intention  to  aver  notice  also  to  the  in- 

Pr.,  402),  Price  v,  McClave  (6  Duer,  dorsers,  and  see  note  1  to  form  No. 

544),  Judd  V.  Smith  (3  Hun,  190);  and  968. 

see,  also.  Cook  v.  Warren  (88  N.  Y.,  ^  See  note  2  to  form  Ko.  122. 
37),  in  which  Woodbury  v.  Sackrider,  '  The  fact  that  plaintiff  is  the  bearer 
supra,  \?,  partially  overruled,  and  it  is  is  a  material  one  to  be  alleged;  its  state- 
held  that  an  averment  that  the  note  ment  will  be  a  sufficient  allegation  of 
was  duly  protested  was  not  a  sufficient  plaintiff's  title.  (Mechanics'  Bank  v. 
allegation  of  notice  to  the  indorsers,  Straiton,  5  Abb.  N.  S.,  11;  36  How. 
and  that  an  averment  of  notice  to  the  Pr.,  190.) 
maker  tends  to  exclude  the  idea  of  aji 


Miscellaneous  Actions.  86& 

A^o.  971. 
Complaint  on  Check  against  Maker  and  ludorser. 

As  in  form  No.  969  to  [*],  inserting  the  name  of  the 
maker  after  word  defendant,  and  from  thence  as  follows : 

Defendant,  L.   M.,  or  order,  the  sum  of  dollars, 

and  the  said  defendant,  L.  M.,  for  value  received,  after- 
wards indorsed  the  said  check,  and  the  same  was,  for  value 
received,  delivered  to  the  said  plaintiff. 

That  payment  of  the  said  check  was  duly  demanded  and 
refused,  and  the  sam3  was  thereupon  duly  protested  for 
non-payment,  and  notice  of  such  demand  and  refusal  was 
duly  given  to  the  said  defendants,  the  expense  of  which  pro- 
test was  the  sum  of dollars. 

That  said  bank,  or  said  defendant,  have  never  paid  the 
said  check,  or  any  part  thereof,  but  that  said  defendants 
are  justly  indebted  to  the  plaintiff  therefor. 

Whereupon,  etc.  [prayer  for  judgment  as  in  form  No.  968].' 
[Signature,  etc.,  as  in  form  No.  968.] 

[Verification  as  in  forms  Nos.  151,  etc.] 


No.  972. 
Complaint  on  Bill  of  Exchange  by  Drawee  against  Acceptor. 

[Title  of  cause.] 

The  above  named  plaintiff  complains,  that  on  the 

day  of ,  18 — ,  one  C.  B.,  at  the  [city]  of , 

made  his  draft  or  bill  of  exchange,  in  writing,  dated  on  that 
day,  and  directed  to  the  defendant,  and  thereby  required 
the  said  defendant  [two  months],  after  the  date  thereof,  to 

pay  to  [*]  the  plaintiff,  or  order,  the  sum  of dollars, 

and  interest  thereon  from  the  date  thereof ;  and  the  said 
defendant  afterwards,  and  for  value  received,  accepted  the 
said  draft  or  bill,  and  promised  the  plaintiff  to  pay  the  same 
according  to  the  terms  and  effect  thereof,  and  of  the  said 
acceptance  thereof.  But  the  said  defendant  has  not  paid 
the  same,  nor  any  part  thereof,  but  is  justly  indebted  to  the 

plaintiff  therefor  in  the  sum  of dollars,  and  interest 

thereon  from  the  dav  of ,  18 — ,  and  for 


'  Sec  note  1  to  form  No.  969. 


870  Forms  Relating  to 

which  sum,  besides  the  costs  of  this  action,  the  plaintifE 
demands  judgment  against  the  defendant,' 

[Signature,  etc.,  as  in  form  No.  968.] 
[Verification  as  in  forms  Nos.  151,  etc.] 


No.  973. 

Complaint  on  Bill  of  Exchange  hy  Indorsee  against 

Acceptor. 

As  in  form  No.  972  to  [^J,  and  from  thence  as  follows: 

One  E.  F.,  or  order, dollars  [two  months]  after 

dale  [or  after  sight  thereof],  which  joeriod  has  now  elapsed. 

That  the  said  E.  F.  afterwards  indorsed  the  said  bill  and 
delivered  the  same  so  indorsed  to  the  plaintiff  for  value 
received,  and  the  defendant  [afterwards]  accepted  the  said 
bill,  and  promised  the  plaintiff  to  pay  the  said  bill  accord- 
ing to  the  tenor  and  effect  thereof  and  of  the  said  accept- 
ance thereof,  yet  the  defendant  did  not  pay  the  amount 
thereof  [although  the  said  bill  was  x^resented  to  him  when 
it  became  due]. 

Wherefore,  etc.  [prayer  for  judgment  as  in  form  No.  968].' 
[Signature,  etc.,  as  in  form  No.  968.] 

[Verification  as  in  forms  Nos.  151,  etc.] 


No.  974. 
Complaint  on  Bill  of  Exchange,  Acceptor  against  Drawers. 

[Title  of  cause.] 

The  plaintiff,  in  this  his  complaint,  says,  that  these  de- 
fendants are  indebted  to  him  for  certain  moneys  advanced 
by  this  plaintiff  and  by  him  paid  in  taking  up  a  certain  draft 
drawn  by  these  defendants  by  the  style  of  J.  B.  &  Co.,  for 

dollars  and  interest,  dated ,  18—,  payable 

days  after  date,  and  accepted  by  this  plaintiff  and 

by  him  paid  ?t  maturity,  without  funds  to  meet  the  same. 

Wherefore,  etc.  [prayer  for  judgment]. 

[Signature,  etc.,  as  in  form  No.  969.] 

[Verification  as  in  forms  Nos.  151,  etc.] 

'  See  note  1  to  form  "No;  909,  and  see        '  See  note  1  to  form  No.  972. 
Purdy  V.  Vermilya  (8  N.  Y..  346.) 


Miscellaneous  Actions.  871 

No.  975. 

Complaint  ou  Bill  of  Excliaiige  against  Acceptor,  Drawer 

and  ludorser. 

[Title  of  cause.] 

The  complaint  of  the  above  named  plaintiff  respectfully 

shows,  that  the  defendant,  A.  B.,  at  ,  made  his 

draft,   or  bill  of   exchange,   bearing  date ,   18 — , 

directing  and  requiring  the  defendant,  C.  D.,  for  value 
received,  to  pay  to  the  order  of  the  defendant,  E.  F.,  the 

sum  of  dollars,  and  interest days  from 

the  date  thereof,  and  the  said  defendant,  C.  D.,  for  value, 
accepted  the  said  draft,  and  the  same  was,  for  value  re- 
ceived, indorsed  by  the  said  E.  F.,  and  by  him  for  value 
transferred  and  delivered  to  the  said  plaintiff. 

That  payment  of  the  said  draft  was  duly  demanded  at 
maturity  and  refused,  and  the  same  was  thereupon  duly 
protested  for  non-payment,  and  notice  of  said  demand  and 
non-payment  was  duly  given  to  the  said  drawer  and  in- 
dorser,  the  expense  of  which  protest  was , 

That  said  defendants  have  never  paid  the  said  draft,  or 
any  part  thereof,  but  are  justly  indebted  to  the  plaintiffs 
therefor,  w^hereupon  the  plaintiff  demands  judgment  against 
the  said  defendants  for dollars  and  interest  there- 
upon from  the day  of ,  18—,  with  costs  of 

this  action  and notary's  fees.* 

[Signature,  etc.,  as  in  form  No.  969.] 

[Verification  as  in  forms  Nos.  151,  etc.] 


No.  976. 

Complaint  on  Bill  of  Exchange  against  Maker  for  Non- 
acceptance. 

[Title  of  cause.] 

The  complaint  of  the  above  named  plaintiff  respectfully 

shows,  that  the  defendant,  on  the day  of 

18 — ,  at ,  for  value  received,  made  his  draff  or  bill 

of  exchange  in  writing,  dated  on  that  day,  and  directed  the 
same  to  one  A.  B.,  requiring  the  said  A.  B.  to  pay  to  the 

»  See  note  1  to  form  No.  972. 


€72  Forms  Relating  to 

defendant  [sixty  days]  from  the  date  thereof  the  sum  of 

dollars  and  interest  from  the  date  thereof,  and  for 

value  the  said  defendant  indorsed  the  same  to  the  plaintiff 
[or  to  one  L.  M,,  who  then  and  there  indorsed  the  same  to 
the  plaintitfj. 

That  the  same  was  duly  and  in  due  time  presented  to  the 
said  A.  B.  for  acceptance,  and  the  said  A.  B.  refused  to 
accept  the  same,  and  tlie  same  was  duly  jorotested  for  the 
non-acceptance  thereof,  and  notice  of  such  presentation  and 
non-acceptance  was  duly  given  to  the  said  defendant,  and 
the  expense  of  such  protest  was  the  sum  of . 

That  said  defendant  has  not  paid  the  said  draft  or  any 
part  thereof. 

Wherefore,  etc.  [prayer  for  judgment  as  in  form  No.  968].* 
[Signature,  etc.,  as  in  form  No.  968.] 

[Verification  as  in  forms  Nos.  151,  etc.] 


No.  977. 

Complaint  on  Foreign  Bill  hy  Drawer  or  Indorser  against 

Acceptor. 

[Title  of  cause.] 

The  plaintiff  complains  against  the  defendant  and  alleges, 

that  the  said  plaintiff  [or  one  E.  F.],  on  the day  of 

,  18 —  [in  parts  beyond  the  seas],  to  wit :  at  [Paris, 

in  France],  made  his  bill  of  exchange,  in  writing,  and  di- 
rected the  same  to  the  defendant,  and  thereby  required  the 
defendant  to  pay  [that  his  second  of  exchange  (according 
to  the  bill)  first  and  third  of  the  same  tenor  and  date  not 
paid]  to  the  plaintiff  [or  one  G.  H.],  or  order,  one  hundred 
dollars  [or  three  thousand  francs],  two  months  after  the  date 
thereof  [or  at  two  usances,  that  is  to  say,  at  (two)  calendar 
months  after  the  date  thereof  (according  to  the  bill)],  which 
period  has  now  elapsed  [if  the  action  be  by  an  indorsee, 
state  the  drawer's,  E.  F's.,  endorsement  to  the  plaintiff  in 
the  common  form],  and  the  defendant  [then  and  there]  ac- 
cepted the  said  bill  and  promised  the  plaintiff  to  pay  the 
same  according  to  the  tenor  and  effect  thereof,  and  of  the 
said  acceptance  thereof  [when  the  bill  is  to  be  paid  in  foreign 

'  See  note  1  to  form  No.  972. 


Miscellaneous  Actioj^s.  873 

money,  add  the  following  averment :  and  the  said  plaintiff 
alleges  that  the  said  sum  of  (three  thousand  francs),  in  the 
said  bill  mentioned,  at  the  time  of  making  the  said  bill,  and 
when  the  same  became  due,  was  and  is  of  the  value  of  six 
hundred  dollars  of  lawful  money  of  the  State  of  New  York]. 

That  the  defendant  has  not  paid  the  said  bill,  nor  any 
part  thereof,  but  the  same  remains  wholly  unj^aid. 

Wherefore,  etc.  [prayer  for  judgment]. 

[Signature,  etc.,  as  in  form  No.  969.] 

[VeriUcation  as  in  forms  Nos,  151,  etc.] 


No.  978. 
Same,  by  Indorsee  against  Drawer, 

[Title  of  cause.] 

The  plaintiff  complains  of  the  defendant  and  alleges,  that 

the  said  defendant,  on  the day  of ,  18 — 

[in  parts  beyond  the  seas],  to  wit,  at  [Paris,  in  France], 
made  his  bill  of  exchange  in  writing,  dated  that  day,  and 
directed  the  same  to  one  E.  F,,  and  thereby  required  the 
said  E.  F.  to  pay  to  the  said  defendant  \or  one  G.  H.],  or 
order,  one  hundred  dollars,  two  months  after  the  date 
thereof,  which  period  is  now  elapsed.  And  the  said  de- 
fendant [then  and  there]  indorsed  the  said  bill  [to  one  G. 
H.,  who  then  and  there  indorsed  and  delivered  the  same] 
to  the  plaintiff,  [*]  and  the  said  bill  was  afterwards  \or 
thereupon]  presented  to  the  said  E.  F.  for  acceptance,  and 
the  said  E.  F.  then  and  there  refused  to  accejjt  the  same. 
[If  the  bill  is  drawn  in  sets,  add  averment,  as  follows :  nor 
did,  nor  would  he,  accept  the  said  (first)  or  (third)  of  ex- 
change in  the  said  bill  mentioned.]  Whereupon  the  said 
hill  was  duly  protested  for  non-accei^tance  thereof,  of  all 
which  the  said  defendant  liad  due  notice. 

That  the  defendant  has  not  imid  the  said  bill  nor  any  part 
thereof,  but  the  same  remtiins  wholly  due  and  unjiaid. 

Wherefore,  etc.  [prayer  for  judgment]. 

[Signature,  etc.,  as  in  form  No.  969.] 

[Verification  as  in  forms  Nos.  I.'^l,  etc.] 

[Or  as  above  to  f*),  and  rioni  iIi'micc  us  follows:   And  llie 

no 


874  FoKMS  Relating  to 

said  E.  F.  did  not  pay  the  said  bill,  although  the  same  was 
duly  presented  to  liini  on  tlie  day  when  it  became  dne, 
whereupon  the  said  bill  was  then  and  there  duly  protested 
for  non-payment  thereof,  of  all  which  the  defendant  then 
and  there  had  due  notice.] 
[Conclude  as  above.] 


No.  979. 
Same^  Indorsee  against  Acceptor,  supra  Protest. 

[Title  of  cause.] 

The  plaintiff  complains  against  the  defendant  and  alleges, 

that  one  E.  F.,  on  the day  of ,  18 —  [in  parts 

beyond  the  seas],  to  wit,  at  [Paris,  in  France],  made  his  bill 
of  exchange  in  writing,  and  directed  the  same  to  one  G.  H., 
and  thereby  required  the  said  G.  H.  to  pay  to  the  said  E.  F., 
or  order,  one  hundred  dollars,  two  months  after  the  date 
thereof,  which  period  has  now  elapsed.  And  the  said  E.  F. 
then  and  there  indorsed  the  same  to  [L.  M.,  who  then  and 
there  indorsed  the  same  to]  the  plaintiff,  and  the  said  bill 
was  duly  presented  to  the  said  G.  H.  for  acceptance,  and  he 
then  and  there  refused  to  accept  the  same,  whereupon  the 
said  bill  was  then  and  there  protested  for  non-acceptance 
thereof,  of  all  of  which  the  defendant  liad  due  notice.  And 
thereupon  the  said  defendant,  in  order  to  prevent  the  said 
bill  from  being  sent  back  and  returned  to  the  said  E.  F., 
did,  under  the  said  protest,  accept  the  said  bill,  and  the 
said  G.  H.  did  not  pay  the  said  bill,  although  the  same  was 
presented  to  him  for  payment  on  the  day  when  it  became 
due,  whereupon  the  said  bill  was  then  and  there  duly  pro- 
tested for  non-payment  thereof,  of  all  which  the  defendant 
then  and  there  had  due  notice. 

Tliat  the  said  bill  has  not  been  paid,  nor  has  any  part 
thereof. 

Wherefore,  etc.  [prayer  for  judgment]. 

[Signature,  etc.,  as  in  form  No.  969.] 

[Verification  as  in  forms  Nos.  151,  etc.] 


Miscellaneous  Actioi^s.  875 

No.  980. 
Complaiut  for  Work^  Labor  aud  Services. 

[Title  of  cause.] 

The  complaint  of  the  above  named  plaintiff  respectfully 
shows,  that  the  above  named  defendant  is  indebted  to  him 
[*]  for  the  work,  labor  and  services  of  the  plaintiff,  to  wit 
[state  general  nature  of  the  services],  which  said  work, 
labor  and  services  were  performed  at  the  request  of  the  de- 
fendant [and  for  materials  furnished  (and  for  monej'^  paid, 
laid  out  and  expended)  by  the  i)laintifiE  to  (and  for)  defend- 
ant at  his  request]  from  the day  of ,  18 — , 

to  the day  of ,  18 — ,  in  the  sum  of ■ 

dollars,  and  interest  thereon  from  the day  of , 

18 — ,  for  which  sum,  with  the  costs  of  this  action,  the  plain- 
tiff demands  Judgment  against  the  defendant.' 

[Signature,  etc.,  as  in  form  'No.  969.] 

[Verification  as  in  forms  Nos.  151,  etc.] 


No.  981. 

Complaint  for  Fees  of  Attorney,  etc. 

As  in  form  No.  980  to  [*],  and  from  thence  as  follows : 
In  the  sum  hereinafter  mentioned  for  the  work  and  labor, 
care  and  diligence  of  the  said  plaintiff,  by  him  bestowed 
and  performed  for  the  said  defendant,  and  at  his  request, 
as  attorney  and  counsel  of  the  said  defendant,  and  upon 
his  retainer  in  divers  causes,  suits  and  business  for  the  said 
defendant,  and  for  certain  fees  due  and  of  right  payable  to 
him  in  respect  thereof,  and  for  drawing,  copying  and  en- 
grossing of  divers  conveyances,  deeds  and  other  paper  writ- 
ings, for  and  at  the  request  of  the  said  defendant,  and  for 


'  As  to   form   of  complaint   in   this  In  an  action  for  a  wrongful  diamia- 

action,   see   Beekman    v.   Platner  (15  sal,    an   allegation   of   readiness   and 

Barb.,  550),  Chesborough  v.  N.  Y.  and  willingness  to  serve  ia  sufficient,  with- 

Erie  R.  R.  Co.  (26  Barb.,  9  ;  S.  C,  13  out  any  allegation  of  an  offer  to  aerve. 

How.  557),  Hosley  v.  Black  (28  N.  Y.,  (Wallace  v.  Warren,  7  Dow).  &  L.,  CO; 

438 ;  S.  C,  26  How.  Pr.,  97,  and  casea  4  Ex.,  364.) 

there   cited),    Ilurst  v.  Litchfield  (39  See  Atkinson  v.  Collins  (9  Abb.,  353; 

N.  Y.,    377) ;  and    see    Lent  v.  N.  Y.  30  Barb.,  430).  Merwin  v.  Hamilton  (C 

and  M.  R.  Co.  (130  N.  Y.,  504),  Mof-  Duer,  253),    Bj-own  v.  Colie   (1    E.  D. 

fett  V.  Sackett   (18  id.,  520),  as  to  al-  Smith,  267). 
legation  of  non-payment. 


876  Forms  Relating  to 

divers  journeys  and  other  attendances  done  and  performed 
by  the  said  plaintiff  in  and  about  the  business  and  suits  of 
the  said  defendant,  and  at  his  like  request. 

Wherefore,  etc.  [prayer  for  judgment]. 

[Signature,  etc.,  as  in  form  No.  969.] 

[Verification  as  in  forms  Nos.  151,  etc.] 


No.  982. 
Complaint  for  the  Bill  of  a  Surgeon  or  Physician. 

As  in  form  No.  980  to  [*],  and  from  thence  as  follows : 
In  the  sum   hereinafter   mentioned  for  divers  drugs   and 

medicines,  between  the day  of ,  18 — ,  and 

the day  of ,   18 — ,   found,   administered 

and  provided  by  the  said  plaintiff  to  and  for  the  said  de- 
fendant, and  at  his  request,  and  for  divers  visits,  attend- 
ances and  journeys  and  other  medical  aid,  during  that  time, 
found,  provided  and  done  and  performed  by  the  said  plain- 
tiff to  and  for  the  said  defendant,  and  at  his  like  request, 
and  for  divers  surgical  operations,  consultations  and  other 
services,  during  that  time,  found,  done  and  performed  by 
said  plaintiff  to  and  for  the  said  defendant  and  at  his  like 
request,  and  for  divers  other  [medical  and  surgical  work, 
labor  and  services,  and]  drugs  and  medicines  during  that 
time  found  and  provided  [therefor  and  done  and  performed 
by  the  said  plaintiff],  to  and  for  the  said  defendant,  and  at 
his  like  request. 

Wherefore  the  plaintiff  [prayer  for  judgment]. 

[Signature,  etc.,  as  in  form  No.  969.] 

[Verification,  etc.,  as  in  forms  Nos.  151,  etc.] 


No.  983. 

Complaint  for  Work,  Labor  and  Materials  in  Building 

House. 

[Title  of  cause.] 

The  plaintiff,  in  his  complaint,  says,  that  this  defendant 
is  indebted  to  this  plaintiff  for  the  work,  labor  and  services, 
care  and  diligence  of  this  plaintiff  and  his  servants  for  the 
defendant  at  sundry  times,  and  also  for  materials  and  other 


Miscellaneous  Actions.  877 

necessary"  things  su^^plied  by  this  plaintiff  to  the  defendant, 
at  his  request,'  in  [building  a  certain  dwelling  house  for  the 
said  defendant  at  the  village  of  West  Troy  in  the  county  of 
Albany]. 

That  ilie  amount  of  such  work,  labor  and  services,  care 
and  diligence  of  this  plaintiff  and  his  servants,  and  also  for 
the  materials  and  other  necessary  things,  furnished  at  the 
request  of  the  defendant,  is  the  sum  of  live  hundred  dollars. 
And  the  plaintiff  admits  that  he  has  received  from  the  said 
defendant  the  sum  of  two  hundred  dollars,  in  part  payment 
of  the  same,  but  the  balance,  to  wit,  of  three  hundred  dol- 
lars, and  interest  thereon  from  the day  of . 

18 — ,  is  still  due  and  unpaid  to  the  i)laintiff. 

Wherefore,  etc.  [prayer  for  judgment].' 

[Signature,  etc.,  as  in  form  No.  969.] 

[Verification  as  in  forms  Nos.  151,  etc.] 


No.  984. 
Complaint  for  Goods  Sold  and  Delivered. 

[Title  of  cause.] 

The  complaint  of  the  above  named  plaintiff  respectfully 
shows,  that  the  said  defendant  is  indebted  to  this  plaintiff 
for  goods,  wares  and  merchandise,  to  wit  [law  books,  blank 

books  and  stationery],  heretofore,  between  the day 

of  ,  18 — ,  and  the  day  of  ,  18 — , 

sold  and  delivered  by  this  plaintiff  to  the  said  defendant  at 

divers  times,   amounting  to  dollars,  and  interest 

thereon  from  the day  of ,  18 — . 

Wherefore  the  plaintiff  demands  judgment,  etc.* 

[Signature,  etc.,  as  in  form  No.  969.] 

[Verification  as  in  forms  Nos.  151,  etc.] 

'As  to  necessity  of  uUeying  request,  New  York   (4   Duer,    295),  and  cases 

8ee   Spear  v.  Downing    (22  How.  Pr.,  cited  in  note  1  to  form  No.  980. 
30,  32),  and  castis  there  cited.  ^See    the    cases   cited    in  note  2  to 

"  As  to  form  of  complaint,  see  Farcy  form  No.  983,  and  Lent  v.  N.  Y.  and 

V.  Lee  (10  Abb.,  143),  Pi-ince  v.  Down  M.  R.  Co.  (130  N.  Y.,  504),  Moffett  v. 

(2  E.  D.  Smith,  525),  Smith  v.  Brown  Sackett  (18  id.,  522),    as  to  allejfatioa 

(17    Barb.,  431),    Adams  v.  Mayor  of  of  non-payment. 


878  FoKMs  Relating  to 

No.  985. 
CoiiipLaint  on  Account  Stated. 

[Title  of  cause.] 

The  plaintiff  complains  of  the  defendant,  that  heretofore 

and  on  the day  of ,  18 — ,  the  said  plaintiff 

and  defendant  came  to  an  accounting  together  [or  an  ac- 
count was  stated  between  the  X)laintili'  and  defendant]. 

That  on  such  accounting  [or  by  such  statement]  defendant 
was  found  to  be  indebted  to  the  plaintiff  in  the  sum  of 
dollars  [which  amount  defendant  promised  to  pay].' 

That  defendant  has  not  paid  the  said  amount  or  any  part 
thereof. 

.Wherefore  plaintiff  demands  judgment,  etc." 

[Signature,  etc.,  as  in  form  No.  969.] 

[Verification  as  in  forms  Nos.  151,  etc.] 


No.  986. 
Complaint  for  Use  and  Occupation. 

[Title  of  cause.] 

The  complaint  of  the  above  named  plaintiff  respectfully 
shows,  that  the  defendant  is  indebted  to  this  plaintiff  for 
the  use  and  occupation  of  [certain  rooms  in  the  Athenaeum 
building],  from  the  first  day  of  May,  18 — ,  to  the  first  day 
of  May,  18 — ,  at  the  yearly  rent  of dollars. 

Wherefore  he  demands  judgment,  etc." 

[Signature,  etc.,  as  in  form  No.  969.] 

[Verification,  etc.,  as  in  forms  Nos.  151,  etc.] 

'These  words  need  not  be  inserted  622  ;    113   N.  Y.,  600),    Aylsworth  v. 

if  no  promise  has  been  made.  Gallagher   (52   State   R.,    505),    Pick- 

"See  as  to  what  constitutes  an  ac-  ard  v.   Simpson  ((i   IN.  Y.  Supp.,  93), 

count  stated,  etc.,  Lockwoodv.  Thorne  Stephen  v.  Ayers   (57  Hun,  51),  Ver- 

(11  N.  Y.,  170;  18  id.,  285),   Bruen  v.  non  v.  Simmons   (28  State  Rep.,  173), 

Hone    (2  Barb.,  586),  Dows  v.  Durfee  Beach  v.  Kidder    (28  id.,  590).  Kings- 

(10  Barb.,  213),  Carpenter  v.  Kent  (50  ley  v.  Melcher  (56  Hun,  547),  Jugla  v. 

N.    Y.    Super.    Ct  ,  371),    Surdam  v-  Trouttet  (120  N.  Y.,  21),  Burlinframe 

Fuller  (31  Hun,  500),  Samson  v.  Freed-  v.  Shelmire    (35  State  R.,  IGl),  Kemp 

man    (102    N.    Y.,   699),    Bottum    v.  v.  Peck  (59  Hun,  118).   Austin  v.  Wil- 

Moore  (13  Daly,  464),   Knickerbocker  son  (33  State  Ren.,  503),  Brockman  v. 

V.  Gould   (4   State   Rep.,  465),   Man-  Meyers  (36  id.,  650),  Frankel  v.  Wat- 

chester  Paper  Co.  v.  Moore  (104  N.  Y.  hen   (58  Hun,  543),    Lawson  v.  DoTig- 

680),    Knickerbocker    v.    Gould  (115  lass   (43   State    Rep.,   356),  Holler  v. 

id.,    533,    aff'g  S.  C,   supra),  August  Apa  (id.,  529),    Bradley  Fertilizer  Co. 

V.  Fourth  Nat.   Bank  (15  Slate  Rep.,  v.  South  Pub.  Co.  (44  id.,  119)(Camp- 

956),    "Weber   v.    Bridgman,  (12    id.,  bell   v.  Campbell   (40  id.,  817),  Rob- 


Forms  Relating  to 


878a 


"bins  V.  Downey  (45  id.,  279),  Mackay 
V.  Kahn  (44  id.,  286),  Liscoinb  v.  A^- 
ate  (67  Hun,  3SS),  Davis  v.  Kiing-  (77 
id  ,  59S),  McClain  v.  Schotield  (74  id., 
437),  Loeb  v.  Keyes  (S6  id.,  BoS), 
Blant  V.  Borchardt  (12  Misc.,  197), 
Dakin  v.  "Walton  (85  riun,  5(51),  Vest- 
uer  V.  Findlay  (10  Misc.,  410),  Con- 
ville  V.  Shook  (144  N.  Y.,  686). 

As  to  form  of  complaint,  see  Gra- 
ham V.  Gammon  (13  How.  Pr.,  360), 
Emery  v.  Pease  (20  N.  Y.,  62),  Finley 
V.  Fay  (96  N.  Y..  663),  Schutz  v.  Mo- 
rette  (146  id.,  137). 

The  giving  of  a  promissory  note  is 
prima  facie  evidence  of  an  account- 
ing and  settlement  of  all  demands  be- 
tween the  parties,  and  that  the  maker 
was  indebted  to  the  payee  upon  such 
settlement  to  the  amount  of  the  note. 
(Lake  v.  Tysen,  6  N.  Y.,  461.) 

^  This  action  cannot  be  maintained 
where  there  is  a  lease  under  seal, 
either  against  the  lessee  or  his  as- 
signee. (Kiersted  v.  Orange,  etc.,  R. 
R.  Co.,  69  N.  Y.,  343.) 


It  can  only  be  sustained  on  the 
ground  of  a  subsisting  tenancy  bet- 
ween the  parties.  (Id.,  347.)  See, 
also,  Preston  v.  Hawley  (139  N.  Y., 
296),  Lamb  v.  Lamb  (146  id.,  317), 
CoUyer  v.  CoUyer  (113  id.,  442),  Pres- 
ton V.  Hawley  (101  id.,  586;  39  State 
Rep.,  721 ;  46  id.,  776). 

See,  further,  as  to  rules  governing 
the  action,  Gilhoolev  v.  Washington 
(4  N.  Y.,  217),  Fletcher  v.  Button  (4 
id.,  396),  "Vernam  v.  Smith  (15  id.,  827), 
Bedford  v.  Terhune  (30  id.,  453),  Hall 
V.  "Western  Trans.  Co.  (34  id.,  284), 
Coit  V.  Planer  (51  id.,  647),  Austin  v. 
Ahearne  (61  id.,  6)  Thomas  v.  Nelson 
(69  id.,  118),  Davis  v.  Delaware  &  Hud- 
son Canal  Co.  (109  id.,  47),  Sadlier  v. 
Riggs  (29  State  Rep.,  15),  Reynolds  v. 
Lawton  (2S  id.,  670),  Whitman  v.  Bowe 
56  Hun.  141),  Seton  v.  Clark  (42  State 
Rep.,  561),  Lamb  v.  Lamb  (76  Hun, 
186,  aff'g  S.  C,  146  N.  Y.,  317),  Gus- 
taveson  v.  Otis  (75  id.,  611),  Ives  v. 
Quinn  (7  Misc.,  155),  Richards  v.  Lit- 
tell  (11  id.,  637). 


Miscellaneous  Actions.  879 

No.  987. 
Complaint  for  Money  had  and  Receiyed. 

[Title  of  cause.] 

Tlie  i)laintlff  complains  of  defendant,  that  the  said  de- 
fendant is  indebted  to  him  in  the  sum  of dollars, 

for  money  had  and  received  by  defendant  to  the  use  of  the 
plaintiff,  and  that  no  part  thereof  has  been  paid  to  the 

plaintiff.' 

[Signature,  etc.,  as  in  form  No.  969.] 
[Verification  as  in  forms  Nos.  151,  etc.] 


No.  988. 

Complaint  for  Money  Lent. 

[Title  of  cause.] 

The  complaint  of  the  above  named  plaintiff  respectfully 

shows,  that  heretofore  and  on  the day  of , 

18 — ,  he  loaned  to  the  defendant dollars,  to  be  re- 
paid on  the day  of  • ,  18 —  [that  on  the 

day  of ,  18  - ,  he  duly  demanded  from  said 

defendant  the  payment  of  said  amount]  f  but  that  defend- 
ant has  not  paid  the  same  or  any  part  thereof. 

Wherefore  the  plaintiff  demands  judgment  against  the 

defendant  for  the  said  sum  of dollars,  with  interest 

thereupon  from  the day  of ,  18 — .' 

[Signature,  etc.,  as  in  form  No.  969.] 

[Verification  as  in  forms  No.  151,  etc.] 

'See,  among  numerous  cases,  Adams  Remsen  v.  Wheeler  (105  N.  Y.,  573), 
V.  Holley  (12  How.  Pr.,  326j,  Harpen-  Brehm  v.  Mayor,  etc.  (104  id.,  186), 
ding  V.  Shoemaker  (37  Barb.,  270),  Moore  v. Williams  (115  id.,  5S6),  Cutler 
Chapman  v.  Forbes  (123  N.  Y.,  532),  v.  Am.  Exchange  Nat.  Bank  (113  id., 
Rosenberg  v.  Block  (54  Sujxm-.  Ct.,  593),  Bridges  v.  Supervisors  of  Sul- 
537,  rev'd  S.  C,  118  N.  Y.,  329),  livau  (92  id.,  570),  First  Nat.  Bank  of 
Risdon  v.  De  La  Rua  (61  id.,  63,  Ballston  Sjja  v.  Supervisors  of  Sara- 
aff'd  98  N.  Y.,  653),  Roberts  v.  toga  (106  id..  4SS),  Coilin  v.  Clly  of 
Ely  (113  id.,  128),  Brown  v.  Brown  Brooklyn  (116  id.,  159),  Place  v.  Hay- 
(40  Hun,  418),  Fisher  v.  Martin  (6  wai-d  (1 17  id.,  4S7),  Strough  v.  Super- 
State  Rep.,  102),  Peyser  V.  Wilcox  (64  visorsof  Jcfierson  (119  id.,  212).  Mason 
How.  Pr..  525),  Mayor,  etc.,  of  New  v.  Preudevgast  (120  id.,  536),  Roberts 
York  V.  Second  Ave  R.  Co.  (31  Hun,  v.  Ellwood  (116  id.,  651),  Ackerman  v. 
241,  aff'd  K.  C,  102  N.  Y.,  .^)72.  .o77).  Cobl>  Line  Co.  (126  id..  361),  Webl>  v. 
Pierson  v.  McCurdy  (H'.',  Hun,  520,  aff 'd  Meyern  (64  Him,  11),  Freeman  v.  Grant 
S.C,  22  Week.Dig.,  253;  100  N.  Y.,608),  (132  N.  Y.,  22),  Newhall  v.  Wyalt  (139 


Miscellaneous  Actions. 


879a 


id.,  452),  Vaughn  v.  Village  of  Port 
Chester  (135  id.,  460),  Tripler  v.  Mayor 
etc.,  of  N.  y.  (139  id.,  1),  Wood  v. 
Young  (141  id.,  211),  Crosby  v.  Clark 
(80  Hun.  426),  Kane  v.  Aldridge  (78 
id  .GOtJ),Dieckerdorf v.Alder(12  Misc., 
445),  Otis  V.  Croui-h  (89  Hun,  548), 
Kruger  v.  Galewski  (13  Misc.,  56), 
"Walsh  V.  Nat.  Bi-oadway  Bank  (id  , 
3),  iEtna  Ins.  Co.  v.  Mayor  (14  id., 
145),  Brown  v.  Brown  (S3  Hun,  160), 
Dumois  V.  Hill  (11  Misc.,  242),  Am. 
Preserving  Co.  v.  Wiltsie  (10  id.,  462), 
Vestner  v.  Findlay  (10  id  ,  410),  Prout 
V.  Chisholm  (89  Hun,  108),  Todd  v. 
Vaughan  (90  id.,  70),  Roldan  v.  Power 
(14  Misc.,  480),  Flandrowv.  Hansmond 


(148  N.  Y.,  129,  rev'g  S.  C,  72  Hun, 
105). 

''If  no  time  was  specified  for  pay- 
ment the  loan  will  bear  interest  from 
the  time  of  a  demand,  or  if  not  de- 
manded before  action  from  the  time 
of  the  commencement  of  the  action. 

See  the  cases  cited  on  that  subject 
in  note  1  to  form  No.  957. 

^The  material  allegations  are  that 
money  was  lent,  and  that  it  has  not 
been  repaid.  ("Whitehead  v.  Allen,  3 
Trans.  App.,  261.) 

It  is  not  necessary  to  allege  a  re- 
quest by  defendant.  (Victors  v.  Davis, 
1  DowL  &  L.,  984  ;  12  M.  &  W.,  766.) 


880  Forms  Relating  to 

JSTo.  989. 
Complaint  on  Undertaking  Given  on  Appeal. 

[Title  of  cause.] 

Tlie  complaint  of  the  above  named  jilaintiff  respectfully 

shows,  tliat  heretofore,  and  on  or  about  the day  of 

,  18 — ,  he  recovered  a  judgment  in  the  

Court  acrainst  one  O.  M.  for dollars  and 


*o 


cents,  damages  and  costs,  the  judgment  roll  whereupon  was 
filed  in  the county  clerk' s  office  on  that  day. 

That  the  said  O.  M.  ai)pealed  from  said  judgment  to  the 
Court,  and  that  on  such  ax^peal  the  said  defend- 
ants, E.  F.  and  G.  H.,  executed  an  undertaking,'  as  required 
by  law,  by  which  they  jointly  and  severally  undertook  that 
the  said  appellant  would  pay  all  costs  and  damages  which 
might  be  awarded  against  the  said  O.  M.  on  said  appeal, 
not  exceeding  five  hundred  dollars,  and  also  jointly  and 
severally  undertook  that,  if  the  said  judgment  appealed 
from,  or  any  part  thereof,  should  be  affirmed  [or  said  ap- 
peal should  be  dismissed],  the  said  appellant  would  pay  the 
sum  recovered  or  directed  to  be  paid  by  the  said  judgment, 
or  the  part  thereof  as  to  which  said  judgment  should  be 
affirmed. 

And  this  plaintiff  further  says,  that  afterwards,  the  judg- 
ment mentioned  and  referred  to  in  the  said  undertaking, 
and  in  this  complaint  mentioned,  as  recovered  against  the 
said  O.  M.,  was  wholly  affirmed  \or  the  said  appeal  was  dis- 
missed] by  the Court,  with  costs  of  the  said  appeal, 

and  that  on  the day  of ,  18 — ,  a  judgment  was 

duly  entered  in county  clerk's  office  against  said 

0.  M.,  and  in  favor  of  the  plaintiffs,  affirming  the  said  first 
mentioned  judgment  \or  dismissing  the  said  appeal]  and  for 

dollars  costs  of  said  appeal  [that  executions  were 

issued  upon  said  judgments  respectively  to  the  sheriff  of 

county  against  the  property  of  the  said  O.  M.  since 

said  affirmance,  and  on  or  about  the day  of , 


>  The  alle.iration  thai  the  undertaking  of  the  complete  execution  including 
was  executed  by  the  defendants  is  a  the  delivery  of  the  instrument.  (Rob- 
sufficient  allegation,  and  there  being  no  ert  v.  Good,  36  N.  Y.,  408;  afi'g,  Rob- 
denial  in  the  answer,  sufficient  proof  ert  v.  Snelling,  2  Daly,  64.) 


Miscellaneous  Actions.  881 

18 — ,  which  executions  have  been  since  returned  by  the  said- 
sheriff  wholly  unsatisfied/  and] ;  that  nothing  has  been  col- 
lected or  paid  upon  said  judgments. 

That  more  than  ten  days  before  the  commencement  of  this 

action,  and  on  or  about  the day  of ,  18 

the  plaintiff  caused  to  be  served  upon  F.  Gr.,  Esq.,  the  at- 
torney for  the  said  aj^jDellant,  a  written  notice  of  the  entry 
of  the  said  judgment,  affirming  the  said  judgment  appealed 
from  [or  dismissing  the  said  appeal].^ 

Nevertheless,  the  said  defendants  have  not  paid  the  said 
plaintiff  the  said  judgments,  nor  any  part  thereof,  but  are 

justly  indebted  to  the  plaintiff  therefor  in  the  sum  of 

dollars,  with  interest  upon  the  sum  of dollars  from 

the day  of ,  18—,  and  on dollars 

from  the day  of ,  18—,  for  which  amount, 

together  with  the  costs  of  this  action,  the  plaintiff  demands 
judgment  against  the  defendant. 

[Signature,  etc.,  as  in  form  No.  969.] 

[Verification  as  in  forms  Nos.  151,  etc.] 


No.  990. 
Complaint  by  Executor  on  Policy  of  Life  Insurance. 

[Title  of  cause.] 

This  plaintiff  in  his  complaint  says,  that  the  defendant,. 

at  the  request  and  for  the  benefit  of  C.  D.,  on  the 

day  of ,  18—,  made  its  writing  obligatory,  or  policy 

of  insurance,  under  its  seal,  in  the  words  and  figures  fol- 
lowing, to  wit  [lieie  insert  policy],  which  said  policy  of 
insurance  the  said  defendant,  on  the  said day  of 

'  There  is  apparently  no  provision  tion,  is  fatally  defective  on  demurrer, 

requiring    execution    to  be    returned  So  lield  under  section  348  of  Uie  Code 

upon  the  judgments  before  suit  upon  of  Pro(;cdure,  which  was  subslaiiMaily 

the  undertaking,  but  these  allegations  the  same  as  section  1309  of  Code  Civ. 

may  be  inserted  in  case  the}' have  Ijeen  Pro.,  9.  v.     (Porter  v.   Kingsl)nry,  71 

is.sued  and  returned.  N.  Y.,  588;  alT'g  S.  C,  5  Ilun,  597.) 

*  A  complaint   on  an   undertaking,  For  form  of  notice,  sec  form  No. 

given  upon  appeal,  which  fails  to  al-  524,  and  see  cases  cited  in  note  2  to 

lege  service  of  the  retjuisile  notice  ten  that  form, 
days  before  the  commencement  of  uc- 
111 


882  Forms  Relating  to 

,  18 — ,  did,  for  the  consideration  or  premium  therein 


expressed,  deliver  to  the  said  C.  D. 

And  the  phiintiff  further  says,  that  the  said  C.  D.  duly 
and  in  due  time  paid  the  annual  premiums  mentioned  in 
the  said  policy,  from  the  time  of  making  the  said  policy 
until  the  time  of  his  decease. 

And  this  plaintiff  further  says,  that  the  said  C.  D.  de- 
parted this  life  [but  not  by  his  own  hands,  or  the  hands  of 

justice,  etc.],'  on  the day  of ,  18—,  having 

previously,  and  on  the day  of ,  18 — ,  made 

has  last  will  and  testament,  in  due  form,  thereby  appoint- 
ing the  plaintiff  the  executor  thereof  ;  which  said  last  will 
and  testament  has  been  duly  proved  by  the  surrogate's 

court,  of  the  county  of ,  and  letters  testamentary 

thereupon,  duly  issued  to  this  plaintiff  on  the day 

of ,  18—. 

And  this  plaintiff  further  says,  that  the  defendant  has 

not  paid  the  said  sum  of  $5,000,  nor  any  part  thereof. 

Wherefore  he  demands  judgment,  etc.  [insert  prayer  for 

judgment]." 

[Signature,  etc.,  as  in  form  No.  949.] 

[Verification  as  in  forms  Nos.  151,  etc.] 

*In  an  action  upon  a  life  insurance  and  all  that  was  essential  to  make  out 

policy,    which    contained   a  condition  a  cause  of  action  was  a  statement  of 

that  if  the  insured  died  by  his  own  the.  contract,  the  death  of  the  assured, 

hand  or  act,  whether  sane  or  insane,  and  the  failure  to  pay  as  provided." 
the  company  should  not  be  liable  for        The  jiresumption  of  law  that  a  sane 

an  amount  greater  than  the  reserve  of  man  found  dead  has   not   committed 

such   policy,    the    answer    set    up    a  suicide  does  not  extend  to  the  case  of 

breach  of  this  condition  as  a  defense,  an  insane  man  so  found      (Germain  v. 

Held,  that  it  was  no  part  of  the  plaint-  Brooklyn  Life  Ins.  Co.,  26  Hun,  604.) 
iflPs  case  to  jirove  the  manner  of  the        See  further  as  to  form  of  complaint 

death  of  the  insured,  that  it  was  for  in    action    on    life    insurance   policy, 

the  defendant  to  plead  and  prove  the  Simons   v.    N.    Y.   Life   Ins.    Co.    (16 

breach  of  the  condition.     (Germain  v.  Week.  Dig.    272),  Taylor   v.   Charter 

Brooklyn  Life  Ins.  Co.,  30  Hun,  536.)  Oak  Life  Ins.  Co.  (9   Daly,  489;  afiPg 

The  complaint  was  sufficient  with-  S.  C,  8  Abb.  N.  C,  331  ;  59  How.  Pr., 
out  any  allegation  of  the  cause  of  the  468),  Cahen  v.  Continental  Life  Ins. 
death  of  the  insured.  (Id.  ;  citing  Co.  (69  N.  Y.,  300),  Grattan  v.  Metro- 
Murray  V.  N.  Y.  Life  Ins.  Co.,  85  N.  politan  Life  Ins.  Co.  (80  N.  Y.,  281), 
Y.,  236,  q.  V.)  Baxter  v.  Brooklyn  Life  Ins.  Co.  (44 

In  thelattercase  it  is  said  by  Miller,  Hun,  184),  Stewart  v.  Union  Mut.  Life 

J.,  at  page  239:  "It  (the  complaint)  Ins.  Co.  (63    Hun,  328),  Bogardus   v. 

alleged,  among  other  things;  that  the  N.  Y.  Life  Ins.  Co.  (101   N.  Y.,  328), 

death  of  the  insured  was  not  caused  by  Knorr  v.  New  York  State  Mutual  Ben- 

the  breaking  of  any  of  the  conditions  efit   Association   (79   Hun,   83),   Bau- 

and  agreements  in  either  of  the  poll-  miller  v.  Workingman's   Co-operative 

cies.   This  allegation  was  not  required.  Association  (9  Misc.,  157). 


Miscellaneous  Actions.  883 

No.  991. 
Complaint  on  Policy  of  Insurance  of  Goods,  etc. 

[Title  of  cause.] 

The  plaintiff  by  his  complaint  shows,  that  the  said  de- 
fendant,' heretofore,  and  on  the day  of , 

18 — ,  made  a  certain  deed-i)oll  or  j)olicy  of  insurance,  and 
sealed  with  the  seal  of  the  defendant,  in  the  words  and  fig- 
ures following  [insert  j^olicy],  which  said  deed-poll  or  policy 

of  insurance  the  said  defendant,  on  the  said day^ 

of ,  18 — ,  delivered  to  this  plaintiff,  upon  his  pay- 
ing to  the  said  defendant  the  amount  of  premium  as  in  the 
said  policy  expressed  and  set  forth,  and  that  thereupon 
the  said  defendant  became  the  insurer  to  the  said  plaintiff 
for  the  sum  of dollars,  in  the  said  policy  of  insur- 
ance set  forth,  of  the  [goods,  wares  and  merchandise  in],  the 
said  building,  in  the  said  xDolicy  mentioned,  for  the  time 
therein  specified. 

[And  the  said  plaintiff  further  says,  that  the  said  policy 
of  insurance,  on  his  application,  was  duly  renewed  and  con- 
tinued by  the  said  defendant  in  full  force  and  effect,  from 

time  to  time,  until  the  day  of ,  18 — ,  on 

which  last  mentioned  day  the  said  plaintiff,  at , 

made  another  application  to  the  said  defendant  for  the  re- 
newal and  continuation  of  the  said  policy  ;  and  the  said 
defendant  then  and  there,  in  consideration  of  the  sum  of 
dollars,  to  him  paid  by  the  said  plaintiff,  the  re- 
ceipt whereof  was,  by  the  said  defendant,  in  writing,  ac- 
knowledged, the  said  defendant  continued  the  said  policy 

in  force  for  the  sum  of dollars  for  one  year,  to  wit, 

from  the day  of ,  18 — ,  to  the  day 

of ,  18 — ,  at  noon.] 

And  this  plaintiff  further  says,  that  at  the  time  of  insur- 
ing the  said  [goods  wares  and  merchandise],  he  was  the 
sole  owner  thereof,  and  so  continued  the  sole  and  exclusive 
owner  till  the  same  [were]  destroyed  by  fire '  on  the 

'  For  allegations  in  suit  by  or  against  interest,  see  Fowler  v.  N.  Y.  Indem- 

corporation,  see  form  No.  832.  nity  Ins.  Co.  (36  N.  Y.,  423;  rev'g  S. 

'  As  to  necessity  for  averment  of  in-  C ,  2.3  Barb.,  143),  Wyman  v.  Wynian 

terest  in  the  property,  and  what  con-  (20  N.  Y.,  253),  Frink  v.  The  Ilamp- 

stitutes  a  proper  allegation  of  such  den  Insurance  Co.  (1  Abb.  N.  S.,  343; 


884  Forms  RELATi^io  to  " 

day  of ,  18 —  [next  aver  the  cause  of  the  fire,  loss 

and  destruction  of  the  goods,  and  the  facts  as  to  compliance 
with  the  terms  as  to  proof  of  loss,  to  entitle  the  plaintiff  to 
recover],  by  reason  whereof  an  action  has  accrued  to  the 
said  plaintiff  to  have,  and  demand  of  and  from  the  said  de- 
fendant, the  sum  of dollars,  so  insured  as  aforesaid, 

and  interest  tliereon." 

Wherefore,  etc.  [prayer  for  judgment]. 

[Signature,  etc.,  as  in  form  No.  969.] 

[Verification  as  in  forms  Nos.  151,  etc.] 


No.  992. 

Answer  Alleging  Non-compliance  with  Conditions  of  the 

Policy. 

As  in  form  No.  1001  to  [*],  and  from  thence  as  follows : 
That  the  plaintiff  did  not,  before  the  commencement  of  this 
action,  give  due  notice,  or  any  notice,  of  the  loss  of  the  said 
goods  by  fire,  for  which  he  seeks  recovery  in  this  action ; 
nor  did  the  said  plaintiff,  previous  to  the  commencement  of 
this  action,  furnish  to  the  said  comjjany  any  statement  of 
the  loss  of  the  said  goods,  as  by  the  said  policy  is  required 
to  be  done,  and  in  several  other  particulars  the  said  plaintiff 

45  Barb.,  387),  Ferguson  v.  Mass.  Mut.  As  to  necessity  of  negativing  breach 

Life  Ins.  Co.  (22  Hun,  320),  Shearman  of  condition,  see  Hunt  v.  Hudson  River 

V.  Niagara  Fire  Ins.  Co.    (46  N.  Y.,  Fire  Ins.  Co.  (2  Duer,  481),  Ellsworth 

52G,  529),  Williams  v.  Ins.  Co.  of  North  v.  ^tna  Fire  Ins.  Co.  (89  N.  Y.,  186). 

America  (9  How.  Pr.,  365) ;  Delahunt  In  an  action  by  a  mortgagor  upon  a 

V.  -SJtnalns.  Co.  of  Hartford  (21  W.  D.,  policy  of  insurance  issued  to  him,  but 

82 ;  S.  C,    97   N.    Y.,  537),    Velie   v.  in  terms   payable  to  the   mortgagee, 

Newark  City  Ins.  Co.  (23  Week.  Dig.,  the  complaint  must  aver  that  the  mort- 

456).  g^g^  has  been  paid,  or  must  join  the 

The  complaint  should  state  that  the  mortgagee  as  a  party.     (Ennis  v.  Har- 

property  insured  was  injured  by  fire,  mony  Fire  Ins.  Co.,  3  Bosw.,  516.) 

(Rodi  V.    Rutger's   Fire   Ins.    Co.,    6  As  to  time   for   accruing   of  action 

Bosw.,  23).  with   reference  to  proofs  of  loss,  see 

*  Where,  by  the  policy,  a  loss  was  Barnum  v.  Mei-chants'  Fire  Ins,  Co. 

made   payable   sixty  days  after   due  (31   Alb.  Law  Jour.,    176  ;   S.  C,  97 

notice   and   proof  thereof,   held,  that  N.  Y.,   188,   and   cases   there   cited), 

plaintiffs  were  entitled  to  interest  after  Jennings  v.  Grand  Trunk  Railway  Co. 

the  expiration  of  sixty  days  from  the  (52  Hun,  227). 

time  of  furnishing  proofs  of  loss,  not  As  to  pi'oper  form  of  action  to  re- 

from  the  time  the  loss  was  adjusted  cover  upon  an  executory  agreement  to 

and  settled.     (Hastings  v.  Westchester  issue  an  insurance  policy,  see  Post  v. 

Fire  Ins.  Co.,  73  N.  Y.,  141.)  ^tna  Ins.  Co.  (43  Barb.,  351). 


Miscellaneous  Actions.  885 

utterly  neglected  and  refused  to  comply  with  the  terms  and 
conditions  in  the  said  policy  set  forth  and  expressed,  and 
the  said  plaintiff  at  divers  times  received  into  his  said  store 
a  large  quantity  of  goods  known  and  described  as  extra 
hazardous,  well  knowing  that  such  reception  was  a  violation 
of  the  conditions  in  the  said  policy  contained ;  and  at  the 
time  of  the  said  fire  the  said  j)laintifl  had  in  his  store  a  large 
quantity  of  such  extra  hazardous  goods,  by  means  whereof 
the  conditions  of  the  said  policy  were  violated,  disregarded 
and  broken,  and  these  defendants  entirely  discharged  from 
their  liability  on  the  said  policy  written.' 

[Signature,  etc.,  as  in  form  No.  969.] 
[Verification  as  in  forms  Nos.  151,  etc.] 


No.  993. 
Complaint  against  Lessee  for  Rent. 

[Title  of  cause.] 

The  plaintiff  complains  of  the  defendant  and  alleges,  that 

heretofore  and  on  or  about  the day  of , 

18 — ,  he  rented  to  tlie  defendant  lierein  a  [store  and  dwel- 
ling, known  and  distinguished  as  No. street  in 

the  city  of ],  for  the  term  of years  from 

the  day  of ,  J 8 — ,  at  the  yearly  rent  of 

dollars,  payable  [quarterly],  which  said  sum  this 

defendant  by  an  agreement  in  Avriting  by  him  signed  agreed 
to  pay  ;  and  that  having  so  hired  the  said  xn-emises  the  said 
defendant  entered  and  occupied,  but  has  not  paid  the  rent 
for  the  same  for  [the  first  two  quarters  of  the  said  year], 
amounting  to dollars  and  interest  on dol- 
lars from  the day  of ,  and  on 

dollars  from  the day  of ,  18 — ,  for  which 

amount,  with  costs  of  this  action,  plaintiff  demands  judg- 
ment against  the  defendant." 

[Signature,  etc.,  as  in  form  No.  969.] 

[Verification  as  in  forms  Nos.  151,  etc.] 


'  See  note  1  to  form  No.  991.  As  to  coinpliiint  in  action  against 

'  For  conipliiint  for  use  and  ocrupa-  assi^jnce  of  a  lease,  see  Norton  v.  Vul- 

tion,  sec.  form  No.  986,  and  see  note  1  lee  (\  Hall,  ;{S|),  Ilolsrnan  v.  De  (3ray 

to  that  form.  (0  Abb.,  79),  Tutu  v.  McCorniiclc  (2'i 


886  Forms  Relating  to 

No.  994. 
Complaint  for  the  Non-delivery  of  Goods  Sold. 

[Title  of  cause.] 

The  jilaintiff  in  his  complaint  says,  that  on  the  third  day 

of  May,  18 — ,  at ,  he  bought  of  the  defendant  one 

thousand  barrels  of  Hour  at  the  price  or  sum  of 

dollars  per  barrel,  which  said  flour  the  said  defendant  then 
and  there  sold  to  this  plaintiff,  and  agreed  to  deliver  to  this 
plaintiff,  at  his  store  in  the  city  of  Schenectady,  on  or  be- 
fore the  tenth  day  of  July  aforesaid,  on  the  following  terms, 
to  wit :  the  payment  of  three  hundred  dollars  at  the  time  of 
such  sale,  and  the  balance  in  ten  days  from  the  delivery  of 
the  said  flour. 

And  this  defendant  further  says,  that  he  paid  to  the  said 
defendant  the  said  sum  of  three  hundred  dollars,  and  is  still 
ready  and  willing  to  perform  his  part  of  the  said  contract ; 
but  the  said  defendant,  although  sufficient  time  has  elapsed 
therefor,  has  failed  to  fulflll  his  part  of  the  said  agreement, 
and  does  still  neglect  and  refuse  to  perform  the  same,  to  the 
great  damage  of  this  plaintiff,  to  wit :  to  the  damage  of  five 
hundred  dollars,  for  which  amount  he  demands  judgment 
against  the  defendant,  with  costs  of  this  action.' 

[Signature,  etc.,  as  in  form  No.  969.] 

[Verification  as  in  forms  Nos.  151,  etc.] 


No.  995. 

Complaint  for  Trespass  in  Taking  Goods. 

[Title  of  cause.] 
The  plaintiff  complains  of  the  defendant,  that  he,  the  said 

defendant,  on  the  tenth  day  of  Sex)tember,  1851,  at  S , 

in  the  county  of  R. ,  wrongfully  broke  into  the  plain- 
tiff's barn  and  took  from  his  possession  one  large  wagon, 
two  sets  of  harness,  two  bay  horses,  one  buffalo  robe  and 
one  whip,  being  the  property  of  this  plaintiff,  and  then  and 
there  took  and  carried  away  the  same  and  converted  them 

Hun,  218),  Van  Rensselaer  v.  Jones  (2        '  See  Camp  v.  Norton  (52  Barb.,  96) 
Barb. ,  643),  Van  Rensselaer's  Executors 
V.  Gallup  (5  Denio,  454). 


Miscellaneous  Actions.  887 

to  liis  own  use,  to  the  damage  of  this  plaintiff  of 

dollars. 

Wherefore  he  demands,  etc.* 

[Signature,  etc.,  as  in  form  No.  969.] 

[Verification  as  in  forms  Nos.  151,  etc.] 


No.  996. 
Complaint  on  a  Covenant  of  Quiet  Enjoyment  in  a  Deed. 

[Title  of  cause.] 

The  plaintiff  in  his  complaint  shows  to  the  court  that 

heretofore,  and  on  or  about  the day  of , 

18 — ,  the  said  defendant,  and ,  his  wife,  made  their 

warranty  deed,  or  indenture,  in  the  words  and  figures  fol- 
lowing [here  set  out  deed],  which  said  deed  or  indenture, 

for  a  valuable  consideration,  to  wit:  the  sum  of 

dollars,  defendant  then  and  there  delivered  to  this  plaintiff. 

And  this  plaintiff  further  says,  that  he,  the  said  plaintiff, 
hay  not  been  permitted,  nor  has  he  been  able,  from  time  to 
time,  and  at  all  times,  peaceably  and  quietly  to  have,  hold, 
use,  occupy,  possess  and  enjoy  the  said  j)rpmises  in  the  said 
indenture  mentioned,  and  thereby  intended  to  be  conveyed  ; 
nor  has  he  been  able  to  have,  receive  and  take  the  rents, 
issues  and  profits  thereof,  but,  on  the  contrary,  one  E.  M., 
who,  at  the  time  of  making  the  said  indenture  hereinbefore 
set  forth,  and  continually  from  thence  until  and  at  the  time 
of  the  eviction,  ejection  and  expulsion  hereinafter  men- 
tioned, had.  and  still  has,  lawful  right  and  title  to  the  said 
premises  with  the  appurtenances,  did  enter  into  the  same, 
and  in  and  upon  the  possession  of  the  said  tenements,  and 
ejected,  expelled  and  removed  the  said  plaintiff,  by  due 
process  of  law,  from  the  possession  and  occui)ation  of  all 
and  every  part  of  the  said  premises  [or  if  only  a  part, 
set  out  what  part],  with  the  appurtenances,  and  kept  and 
held  out,  and  still  keeps  and  holds  out,  him,  the  said  plnin- 
tiff,  so  thereof  expelled,  from  his  possession  and  occu])ari()n 
thereof,  contrary  to  the  form  and  effect  of  the  said  inden- 
ture, and  of  the  said  covenant  of  the  said  defendant,  so  by 

'  For  complaint  in  action  for  trespass  upon  real  property,  see  form  No.  744. 


888  FoKMs  Rklatinci  to 

liiin  made  in  that  behalf  as  aforesaid,'  by  reason  of  all  which 
premises  the  said  plaintiif  lias  not  only  entirely  lost,  and 
been  deprived  of  the  said  lands  and  tenements  in  the  said 
indenture  particularly  mentioned,  and  of  divers  large  sums 
of  money  by  him,  the  said  plaintiff,  laid  out  and  expended 
in  and  upon  the  said  premises,  in  repairing,  amending  and 
improving  the  same,  but  has  also  been  obliged  to  pay  the 
costs  and  charges  sustained  by  the  said  E.  M.  in  prosecut- 
ing a  certain  action  in  the  nature  of  ejectment  for  the  re- 
covery thereof,  all  of  which  amount  to  a  large  sum,  to  wit, 
dollars." 

Wherefore  he  demands,  etc.  [prayer  for  judgment]. 

[Signature,  etc.,  as  in  form  ]So.  969.] 

[Verification  as  in  forms  Nos.  151,  etc.] 


No.  997. 
Complaint  ou  Covenant  of  Seisin. 

[Title  of  cause.  ] 

The  plaintiff  complains  of  the  defendant  and  alleges,  that 
on  the  81st  day  of  March,  1876,  the  defendant,  R.  S.  N.,  and 
Ida,  his  wife,  for  a  valuable  consideration,  bj^  deed  conveyed 
to  the  plaintiff'  in  fee  simple  absolute  all,  etc.  [describing 
property]. 

That  said  deed  contained  a  covenant,  on  the  part  of  the 
defendant,  of  which  the  following  is  a  cojiy,  to  wit  [insert 
copy  covenant  of  seisin]. 

That  at  the  time  of  the  execution  and  delivery  of  the  said 
deed  the  defendant  was  not  the  true,  lawful  and  rightful 
owner,'  nor  was  he  lawfully  seized  in  his  own  right  of  a 

'  In  assigning  a  breach  of  a  cove-  154),  Green  vault  v.  Davis  (4  Hill,  643), 

nant  "  it  must  distinctly  appear  by  ex-  Beddoe's  Executor  v.  Wadswoitb  i21 

press  words,  or  by  a  necessary  impli-  Wend.,  120),  Wooley  v.  Xewcomb  (87 

cation,  that  admitting  the  truth  of  the  N.  Y.,  605),  cited  in  note  1  to  form 

facts  stated  in  the  complaint,  the  de-  No.  997. 

f endant  has  broken  the  covenant.  The  '  In  an  action  for  a  breach  of  cove- 
words  of  the  covenant  need  not  liter-  nant,  the  alleged  damages  must  be 
ally,  but  must,  in  all  cases,  be  substan-  averred  in  the  complaint.  (Xeary  v. 
tially  followed."  (Schenck  v.  Naylor,  Bostwick,  2  Hilt.,  514,  and  cases  cited.) 
2  Ducr,  675.)  '  Allegations  in  a  complaint  upon  a 

See,  also,  LjTich  V  Murray  (21  How.,  covenant  of  seisin  that  defendant  was 


Miscellaneous  Actions.  889 

good,  absolute  and  indefeasible  estate  of  inheritance  in 
fee  simple,  nor  had  he  good  right,  full  power  and  lawful 
authority  to  grant,  bargain,  sell  and  convey  the  same  in 
said  manner  and  form  as  in  said  deed  pretended  and 
adopted. 

By  reason  of  the  matters  aforesaid  this  plaintiff  has  sus- 
tained damage  in  the  sum  of  six  hundred  dollars,  for  which 
he  demands  judgment,  with  costs  of  this  action. 

[Signature,  etc.,  as  in  form  No.  969.] 

[Verification  as  in  forms  Nos.  151,  etc.] 


No.  998. 
Complaint  under  Civil  Damage  Act. 

(Ch.  646,  Laws  of  1873.) 

[Title  of  cause.] 

The  plaintiff  respectfully  shows  to  this  court,  that  he  is 
the  father  of  G.  B.  Y.,  a  minor,  who  was  twenty  years  of 
age,  March  6,  1874;  that  said  G.  B.  V.  resided  with  the 

plaintiff  on  his  farm  in  O ,  St.  Lawrence  county. 

New  York,  and  assisted  iDlaintiff  in  carrying  on  the  work 
and  business  of  the  said  farm,  and  was  a  means  of  support 
to  plaintiff  up  to  September  19,  1874. 

That  the  defendant,  W.  O.,  is,  and  during  the  year  1874 
has  been,  the  owner  of  a  certain  lot  and  building  on  the 
northeast  corner  of  Ford  and  Catharine  streets  in  the  city 

of  O ,  New  York,  which  building  is  kept  as  a  hotel 

by  said  O.,  and  is  known  as  the  "  National  Hotel." 

That  prior  to  the  month  of  September,  1874,  said  defend- 
ant, O.,  leased  to  the  defendant,  J.  B.  J.,  a  room  in  the 
basement  of  said  building  for  a  bar-room,  with  knowledge 
that  intoxicating  liquors  were  to  be  sold  therein,  and  during 
the  month  of  September,  1874,  said  defendant,  J.,  kept  a 

not  the  lawful   owner,  and  was  not  proof  under  a  general  denial  of  the 

.seized  of  the  premises  in  fee,  are  suffi-  alleviations  of  the  above  complaint  is 

cient;  it  is  not  essential  that  the  title  upon  the  plaintiff,  who  must  prove  the 

should  be  set  out  in  detail  (Woolley  v.  breacli  of  the  covenant,  and  that  it  is 

Newcomb,  87  N.  Y. ,  G05),  from  which  not  upon  the  defendant  to  show  his 

case  the  above  form  of  complaint  is  title,  overruling  Potter  v.  Kilchcu  (5 

taken,  and  see  that  case  that  burden  of  Bosw.,  566). 

112 


890  Forms  Relating  to 

bar  in  said  room  at  which  he  sold  intoxicating  liquors,  all 
of  wliich  was  done  with  the  knowledge  and  consent  of  said 
defendant,  O. 

That  on  or  about  the  19th  day  of  September,  1871,  the 

said  G.  B.  V.  became  and  was  intoxicated  at  O 

aforesaid  ;  that  such  intoxication  was  caused  in  whole  or  in 
part  by  intoxicating  liquor  sold  or  given  away  at  said  bar 
by  the  defendant,  J.,  his  agents  or  servants. 

That  in  consequence  of  said  intoxication  the  said  G.  B.  V. 
was  so  injured  that  he  has  ever  since  been  sick,  and  for  the 
greater  part  of  the  time  confined  to  his  bed  and  delirious, 
and  plaintiff  has  been  put  to  large  expense  for  medical  at- 
tendance, nurses  and  medicines  for  his  said  minor  son,  and 
has  been  wholly  deprived  of  his  labor  and  services,  and  has 
been  thereby  injured  in  his  property  and  means  of  support, 
and  has  sustained  damages  in  the  sum  of  two  thousand 
dollars. 

Wherefore  plaintiff  demands  judgment  against  the  de- 
fendants for  two  thousand  dollars  damages,  besides  the 

costs  of  this  action.' 

E.  C.  J.,  Plaintiff ^ s  Attorney. 

[Office  address.'"] 

[Verification  as  in  forms  Nos.  151,  etc  ] 

'  As  to  action  under  civil  damage  See,  also,  Neu  v.  McKechnie  (95  N. 

act,  see  Volans  v.  Owen  (74  N.  Y.,  626),  Y.,  632),  Loveland  v.  Briggs  (32  Hun, 

from  which  case  this  complaint  is  taken.  477),    Becker  v.    Barnum  (19   Week. 

It  was    held,   ia   that   case,  that   the  Dig.,  94),  Davis  v.  Standish  (26   Hun, 

plaintiff  could  not  recover  for  loss  of  608),   Quain  v.   Russell  (12  id.,   376), 

service  or  the  expenses  of  his  son's  ill-  Brookmire  v.  Monaghan  (15  id.,  16), 

neas  under  the  words  "means  of  sup-  Aldrich  v.  Sager  (9  id.,  537),  Hill  v. 

port,"  without  proof  that  the  services  Berry  (75  N.  Y.,  229);  also  see  26  Alb. 

were  necessary  to  his  support,  or  that  Law  Jour.,  226,  for   review  of  cases, 

the  charge  brought  tipon  him  by  his  and  see  O'Conner  v.  Conzen  (23  Week, 

son's  illness  diminishtd  his  means,  so  Dig.,  533),  McCarty  v.  Wells  (51  Hun, 

as  to  render  them  inadequate  therefor.  171),    Ackerman    v.    Betz    (11    State 

The  act  of  1873  is  a  constitutional  Rep.,  355),    Campbell   v.  Schlesinger 

enactment.    It  is  doubtless  an  extreme  (48  Hun,  428),  Beers  v.  Wallhizer  (43 

exercise   of  legislative   power,  but  it  id.,  254),  Stevens  v,  Cheney  (36  id.,  1), 

violates  no  express  or  implied  prohi-  Mullen  v.  Christian   (22  Week.  Dig., 

bition  of  the  Constitution.    (Bertolf  v.  59);  21  Abb.  N.  C,  7,  note;  Elliott  v. 

O'Reilly,    74  N.   Y.,   526.)      That  act  Barry  (34  Hun,  129),  Conklin  v.  Tice 

was  not  repealed  by  chapters  401  and  (15  State  Rep,,  835),  Reid  v.  Terwilli- 

403  of  the  Laws  of  1892.     The  latter  ger  (116  N.  Y.,   530,  rev'g  42  Hun, 

acts   are   simply   amendatory   of  the  310),   Ketcham    v.  Fox  (52  Hun,  284), 

former,  and  do  not  affect  a  cause  of  Blatz   v.  Rohrback    (116   N.  Y.,  450, 

action   which  accrued   prior  to  their  rev'g   S.    C,    42   Hun,    402),    Dudley 

])assage.     (Quinlan  v.  Welch,  141  N.  v.    Parker   (55   Hun,    29),    Rouse    v. 

Y.,  158;  aff'g  S.  C,  69  Hun,  584.)  Catskill  and  N.  Y.  Steamboat  Co.   (59 

A    married    woman    who    owns    a  id.,  80),  Dudley  v.  Parker  (132  N.  Y„ 

building  in  which  intoxicating  liquors  386),  Bacon    v.   Jacob    (63  Hun,    51), 

are  sold  by  her  husband,  and  who  has  Hall  v.  Germain  (131  N.  Y.,  536,   aff'g 

knowledge  that  such  business  is  car-  S.  C,  37   State   Rep.,  320),   Streever 

ried  on  by  him,  is  liable  under  that  v.    Birch    62    Hun,    298),    Astheimer 

act.    (Mead  v.  Stratton,  87  N.  Y.,  493.)  v.  O'Pray  (41  State  Rep.,  220),  Goram 


Miscellaneous  Actions.  891 

'No.  999. 
Complaint  against  Mechanic  for  Doing  His  work  Badly. 

[Title  of  cause.] 

The  plaintiff  complains  of  the  defendant  and  says,  tiiat  on 

or  about  the  day  of ,  18 — ,  by  a  certain 

agreement  tlien  made  by  and  between  the  said  i)laintiff  and 
the  said  defendant,  it  was  agreed  that  the  said  defendant 
should  take  down  a  certain  dwelling-house  in  the  [city]  of 

,  and  should  build  another  dwelling-house  for  the 

said  plaintiff  agreeably  to  certain  plans  thereof,  then  in  the 
possession  of  the  said  defendant,  and  that  the  said  contract 
or  agreement  was  in  the  words  and  figures  following  [set 
out  copy  contract]. 

And  although  the  said  defendant  did  afterwards,  and  be- 
fore the  commencement  of  this  action,  erect  and  build  the 
said  dwelling-house,  with  the  appurtenances,  for  the  said 
plaintiff,  yet  the  said  defendant,  not  regarding  his  agree- 
ment, although  the  said  plaintiff  has  performed  his  part  of 
the  contract,  but  contriving  and  intending  to  defraud  and 
deceive  the  said  plaintiff  in  this  behalf,  did  not,  nor  would, 
erect  or  build  the  said  house  agreeably  to  the  said  plans, 
agreement  and  particulars,  with  good  and  proper  materials, 
and  in  a  sound,  substantial  and  workman-like  manner,  but 
wholly  neglected  and  refused  so  to  do  ;  and,  on  the  contrary 
thereof,  he,  the  said  defendant,  erected  and  built  the  said 
last-mentioned  house  with  the  aj^purtenances  different  from 
and  contrary  to  the  said  plans  and  agreement  and  particu- 
lars, and  with  bad  and  improper  materials,  and  in  a  slight, 
weak,  inartificial  and  unworknumlike  manner,  contrary  to 
the  form  and  effect  of  the  said  plans,  agreement  and  under- 
taking, to  the  damage  of  the  plaintiff  of dollars. 

Wherefore  he  demands  judgment,  etc. 

[Signature,  etc.,  as  in  form  No.  969.] 

[Verification  as  in  forms  Nos.  151,  etc.] 

V.    Cable    (44    id.,    292),    Bennett    v;  see   Lndwig   v.   Glaessel    (20    Week. 

Levi  (40  id.,  754),  CoiuHtock  v.  Hop-  Di|f.,  302). 

kins   (01     Hun,    189),    Lawa   of    lb92.         The  utatute   has  no  extra  teiritorial 

chai)3.    401    and    403;    O'Rourke    v.  eflecl.     Tbe  caiine  of  aiUion  iagiven  by 

Piatt  (07  Hun,  71),  Reinhardt  v.  Fritz-  ntatute,  and  muBl  refer  only  to  an  in- 

che  (69  id.,  565),  De   Puy  v.  Cook  (90  jury  done  in  this  state.     (Goodwin  v. 

id.,  43).  Vount,',  2U  Week.    Di^'..  299;  S.  C,  34 

That  cause  of  action  Hurvives  against  Hun,  252;  31   Alb.  Law  Jour.,  183.) 
estate    of    i)arty    causing    death,    see         As  to  joinder  of  defemlants,  see  Mo- 

Moriarity  v.  Barllett  (20  Week.   Dig.,  renus  v.  Crawford  (15  Hun,  45). 
277).  »Seo  note  2  to  form  No.  122. 

As  to  assignment  of  cause  of  action. 


892  Forms  Relating  to 

No.  1000. 
Complaint  for  Brejich  of  Warranty  of  a  Horse. 

[Title  of  cause.] 

The  plaintiff  complains  of  the  defendant  and  says,  that  on 

the day  of ,  18 — ,  at  the  sj^ecial  instance 

and  request  of  the  said  defendant,  he  bargained  with  the 
said  defendant  and  bought  of  the  said  defendant  a  certain 

horse,  at  and  for  the  sum  of dollars  ;  and  the  said 

defendant,  by  then  and  there  representing  and  warranting 
the  said  horse  to  be  in  every  way  sound  and  gentle  and 
quiet  in  harness,'  then  and  there  sold  the  said  horse  to  the 

said  plaintiff  for  the  said  sum  of dollars,  which 

this  plaintiff  then  and  there  paid  to  the  said  defendant, 
whereas,  in  truth  and  in  fact,  the  said  horse  was,  at  the 
time  of  the  said  warranty  and  sale  thereof,  unsound  and 
had  the  heaves,  and  was  unsteady,  restive  and  ungoverna- 
ble in  harness,  and  has  so  remained  and  continued  from 
thence  hitherto. 

And  this  plaintiff  further  says,  that  relying  upon  the  said 
wan-anty  of  the  said  defendant,  he  afterwards  attempted 
to  use  the  said  horse  in  harness,  and  the  said  liorse  being 
unsteady,  restive  and  ungovernable  in  harness,  without  the 
fault  of  this  plaintiff,  ran  away,  greatly  injuring  and  break- 
ing the  said  plaintiff's  wagon,  and  also  greatly  injuring  and 
bruising  the  said  plaintiff,  whereby  the  said  plaintiff  be- 
came sick,  sore  and  lame,  and  was  hindered  and  prevented 
from  doing  his  work,  which  it  was  necessary  for  him  to  do, 
and  has  been  put  to  great  expense  in  divers  ways  on  ac- 
count of  his  relying  upon  the  said  warranty  of  the  said 
horse,  and  has  sustained  damage  thereby  to  a  large  amount, 
to  wit, dollars. 

AVherefore  he  demands  judgment,  etc/ 

[Signature,  etc.,  as  in  form  No.  969.] 

[Verification  as  in  forms  Nos.  151,  etc  ] 

'  An  affirmtition  in  regard  to  an  ex-  Cartright,  44  id.,  536;  Richardson  v. 

isting  fact,  distinctly  and  positively  Mason,  53  id.,  601.) 

made  in  the  negotiations  for  trade.  As  to  pleading  implied  warranty,  see 

should  l)e  regarded  as  a  contract  and  Hoe  v.  Sanborn  (31  N.  Y.,  555),  Lit- 

enforced  as  a  warranty.     (Sweet  v.  tauer  v.  Goldman  (72  N.  Y.,  506). 

Bradley,  24  Barb.,   554;   Wilbur   v.  «  See  form  No.  936,  and  note  1  to 

that  form. 


Miscellaneous  Actions.  893 

No.  1001. 
Answer,  Coa  ertiire  of  Defeudant. 

[Title  of  cause.] 

This  defendant  [further]  answering  the  complaint  of  the 
plaintiff  says,  [^]  that  at  the  time  of  the  service  of  the  sum- 
mons [and  complaint]  in  this  action  on  this  defendant,  she 
was  [and  still  is],  the  wife  of  one  C.  B.,  who  is  still  living 
in  the  city  of  Buifalo,  and  that  the  cause  of  action  set  forth 
in  the  said  plaintiff's  complaint  does  not  concern  the  sepa- 
rate property  or  liability  of  this  defendant. 

[Or  as  above  to  {^)  and  from  thence  as  follows :  That  at 
the  time  of  the  making  of  the  suj^jjosed  (note)  alleged  in 
the  complaint,  this  defendant  was  (and  still  is)  the  wife 
of  one  C.  B.,  and  that  the  said  note  was  not  made  in  or 
about  the  carrying  on  of  any  trade  or  business  by  her,  and 
did  not  relate  to,  and  was  not,  for  the  benefit  of  her  sepa- 
rate estate,  and  was  not  charged  upon  her  separate  estate.] ' 
[Signature,  etc.,  as  in  form  No.  969.] 

[Verification  as  in  forms  Nos.  151,  etc.] 


No.  1002. 

Answer,  Infancy  of  Plaintiff  or  Defendant. 

As  in  form  No.  1001  to  [*],  and  from  thence  as  follows : 
That  the  said  plaintiff  is  an  infant,  under  the  age  of  twenty- 
one  years,  to  wit :  of  the  age  of  eighteen  years,  and  has  com- 
menced this  action  in  his  own  person,  and  not  by  his  next 
friend  or  guardian  ad  litem.'' 

'  See  Code  Civ.  Pro.,  §  450,  and  see  263),  Bowery  Nat.  Bank  v.  SniflFen 
Ferris  V.  Holmes  (8  Daly,  217),  Brand  {'A  Hun,  304),  lloyt  v.  Malone  (31 
V.  Hammond  (05  How.  Pr.,2G4),  Alex-  State  Rep.,  739),  ij'innon  v.  McCahill 
anderv.  Shilaber  (G4id.,  530),  Knowlea  (30  id.,  30.')),  Queens  Co.  Bank  v. 
V.  Tuone  (06  N.  Y.,  534).  Scudder  v.  Leavit  (M  lluii,  426);  3  Abh.  N.  C, 
Gori  (18  Abb.  Pr.,  222),  Bog-ert  v.  Gu-  ISO  ;  Porter  v.  Dunn  (131  N.  Y.,  314  ; 
lick  (G5  Barb  ,  320  ;  45  How.,  335),  rev'f,'-  S.  C,  Gl  Uuu,  310),  Edwards 
Fairlie  V.  Bloomin{,'-dale(38Hun,  220),  v.  Woods  (131  N.  Y.,  350);  Gates  v. 
Suau  V.  Caffe  (122  N.Y.,  308),  Linder-  Williama  (3  Misc.,  376),  Laahaw  v. 
man  v.  Farquharson  (101  id.,  434),  Croissant  (88  Hun,  206),  Sands  v. 
Blaechinska  v.  Howard  Mission  and  Sparling  (82  id.,  401),  Miller  v.  Rich- 
Home  (130  id.,  497  ;  rev'g  8.  C,  5G  ardson  (88  id.,  49),  Farrell  v.  Har- 
Hun,  322),  Noel  v.  Kinney  (106  N.  Y.,  rison  (14  Mi.sc,  462). 
74;  rev'gS.  C.  15  Abb.  N.  C,  403),  By  chapter  381,  Laws  of  1884,  as 
"Willis  V.    Albertsou,   20  Abb.    N.  C,  amended  by  chapter  &94  of  Laws  of 


Miscellaneous  Actions. 


893a 


1892,  a  married  woman  may  contract 
with  her  husband  or  any  other  person, 
to  the  same  extent,  with  like  eflect  and 
in  the  same  form  as  if  unmarried,  and 
she  and  her  separate  estate  shall  be 
liable  thereon,  whether  such  contract 
relates  to  her  separate  business  or 
estate  or  otherwise,  and  in  no  case 
shall  a  charge  upon  her  separate  estate 
be  necessary.  But  nothing  herein  con- 
tained shall  be  construed  to  authorize 
the  husband  and  wife  to  enter  into  any 
contract  by  which  the  marriage  relation 
shall  be  altered  or  dissolved,  or  to  re- 


lieve the  husband  from  his  liaMlity  to 
support  his  wife.  Section  2  of  the  said 
act  of  1884  was  repealed  by  said  chap- 
ter 594  of  1892,  the  changes  made  by 
which  act  in  section  one  are  above  in- 
dicated by  italics. 

'See  Code  Civ.  Pro.,  §§469,1686, 
and  Smart  v.  Haring  (14  Hun,  276). 

Before  the  enactment  of  chapter  14 
of  Code  Civ.  Pro.,  the  rights  of  infants 
to  real  property  were  enforceable  by 
their  guardians  in  socage.  (Cagger  v. 
Lansing,  64  N.  Y,,  417;  More  v.  Deyoe, 
22  Hun,  208. 


894  Forms  Ivelating  to 

[Or  that  at  the  time  of  the  making  of  the  supposed  (con- 
tract) alleged  in  the  complaint,  the  defendant  was  under 
the  age  of  twenty-one  years,  to  wit :  of  the  age  of • 

years.  ] 

[Signature,  etc.,  as  in  form  No.  969.] 

[Verification  as  in  forms  Nos.  151,  etc.] 


No.  1003. 
Answer  of  Duress. 


As  in  form  No.  1001  to  [*],  and  from  thence  as  follows : 
This  defendant  ought  not  to  be  charged  with  the  demand 
referred  to  in  the  complaint  in  this  action  by  virtue  of  the 
said  [writing  obligatory],  because  he,  the  said  defendant, 
at  the  time  of  making  the  said  [writing]  aforesaid,  was  un- 
hnvfully  imprisoned  by  the  said  plaintiff  [and  others  in  col- 
lusion with  him],  and  then  and  there  detained  in  prison, 
until,  by  the  force  and  duress  of  imprisonment  of  him,  the 
said  defendant,  he  made  the  said  writing,  and  delivered  the 
same  to  the  said  plaintiff  as  his  [writing  obligator}^].' 

[Signature,  etc.,  as  in  form  No.  969.] 

[Verification  as  in  forms  Nos.  151,  etc.] 


No.  1004. 

Answer  of  Release. 

As  in  form  No.  1001  to  [*J,  and  from  thence  as  follows : 
That  after  the  making  of  the  said  several  promises  and  un- 
dertakings in  the  said  complaint  mentioned,  and  before  the 
commencement  of  this  action,  to  wit :  on  the day 

•  For  recent  decisions  as  to  what  Life  Ins.    Co.    of  K  Y.  (72  id.,  385), 

constitutes    duress,   see    Soling'er    v.  Scholey  v.  Halsey  {t2  id.,  578),  Secor 

Earle  (82  N.  Y.,  393),   Guilleaume  v.  v.  Clark  (115  id.,  666;  aff'g-  without 

Rowe  (48  Super.  Ct.,  169;  63  How.  Pr.,  op.  S.  C,  54  Super.  Ct.,  494),  Wallace 

175;  14  Week.  Dig.,  196;  aff'd  94  N.  v.  Hoexter  (17  Abb.  N.C.,  267),  Schoe- 

Y.,  268),  McPherson   v.  Cox   (86   id.,  ner  v.  Lissauer  (107  N.  ¥.,  Ill),  Bliss 

472;  rev'gS.  C,  21  Hun,  493),  Met.  v.   Wallis   (3  How.  Pr.   [N.  S.],  325), 

Life  Ins.  Co.  v.Meeker  (85  N.  Y.,  614),  Vaughn  v.  Village  of  Port  Chester  (43 

Dunham  v.  Griswold  (16  Week.  Dig.,  Hun,  427),  Potter   v.    Greene   (39  id., 

501 ;  aff'd  100  N.  Y.,  224)  ;  Haynes  v.  72),  Ziporkes  v.  Chmelniker  (15  State 

Rudd    (102  id.,  272  ;   rev'g  S.  C,  30  Rep.,  215),  Scudder  v.  Burrows  (7  id., 

Hun,  237),  Fowler  v.  Butterly  (78  N.  605),  Secor  v.  Clark,    117  N.  Y.  350; 

Y.,  6S),  Barry  v.  Brune  (71  id.,  261),  rev'g  S.  C,  56  Super.  Ct.,  162),  Strang 

Smith  V.  Rowley  (66  Barb.,  502).  White  v.  Petei-son  (56  Hun,   418),   Adams  v. 

V.  Baxter  (41  N,  Y.    Super.    Ct.,   358;  Irving   Nat.  Bank    (116    N.  Y.,   606), 

afiPd  71  N.  Y.,  254),  Stilwell  v.  Mut.  Oregon  Pac.  R.  R.  Co.    v.    De  Forest 


Forms  Relating  to 


894a 


(32  State  Rep.,  178),  Barnett  v.  Weber 
(125  N.  Y.,  118),  Oregon  Pac.  R.  Co. 
V.  Forrest  (128  id.,  83),  Stone  v.  Weil- 
ler  (128  id.,  655  ;  aff'g  S.  C,  32  State 
Rep.,  926).  Doyle  v.  Rector,  etc.,  of 
Trinity  Church  (133  N.  Y.,  372),  Saw- 
yer V.  Greener  (44  State  Rep.,  203), 
Foerster  V.  Squier  (46  id.,  289),  Lazzar- 


one  V.  Oishei  (2  Misc.,  200),  Baldwin 
V.  Sullivan  Timber  Co.  (48  State  Rep., 
296).  White  v.  Rasines  (50  id.,  458), 
Jewelers'  League  v.  De  Forest  (80 
Hun,  376),  Day  v.  Studebacker  Bros. 
Mfg-.  Co.  (13  Misc.,  326),  Lynch  v. 
Lauer  (14  id.,  252). 


Miscellaneous  Actions.  895 

of ,  18 — ,  tlie  said  plaintiff  made  his  certain  writing  of 

release  in  the  words  and  figures  following  [set  forth  copy 
of  release]. 

[Signature,  etc.,  as  in  form  No.  969.] 
[Verification  as  in  forms  Nos.  151,  etc.] 


No.  1005. 
Answer  of  Payment. 

As  in  form  No.  1001  to  [*],  and  from  thence  as  follows : 
That  the  said  j)laintiff  ought  not  to  have  or  maintain  this 
action  against  him,  because  the  said  defendant  did,  on  the 
day  mentioned  in  the  said  [writing  obligatory]  foj'  on  the 

day  of ,  18 — ],'  pay  to  the  said  plaintiff 

the  sum  of  [five  hundred]  dollars  in  the  said  [condition] 
mentioned,  together  with  all  interest  then  due  thereon,  ac- 
cording to  the  form  and  effect  of  the  said  condition. 

[Signature,  etc.,  as  in  form  No.  969.] 

[Verification  as  in  forms  Nos.  151,  etc.] 


No.  1006. 

Answer  of  Accord  and  Satisfaction. 

As  in  form  No.  1001  to  [*],  and  from  thence  as  follows: 
That  he,  the  said  defendant,  before  the  commencement  of 

this  action,  to  wit :  on  the day  of  ,  18 — , 

at ,  paid  to  the  said  plaintiff  the  sum  of  

dollars,  in  full  satisfaction  and  discharge  of  the  sum  in  the 
said  [breach  of  covenant]  mentioned,  and  of  all  the  damages 
by  the  said  plaintiff  mentioned,  by  reason  of  the  non-pay- 
ment thereof  ;  which  said  sum  of dollars  the  said 

'  It  should  be  stated  that  the  pay-  etc.,  R.   R.  Co.  v.  Collin.s  (1  Abb.  N. 

ment  was  after  the  cause  of  action  ac-  C. ,  47). 

crued,  but  the  day  of  payment  is  not  If  the  payment  was  made  interme- 

necessarj'  to   be   stated.     (Beesley  v.  diate  the  commencement  of  the  action 

Dolley,  6  Bing.  N.  C,  37.)  and  tiic  time  of  putting  in  the  answer. 

As  to  plea  of  payment  by  check,  see  the  defendant  may  set  up  this  fact  in 

Strong  V.  Stevens  (4  Duer,  608),  Brad-  his  answer  as  a  defense  to  the  action. 

ford  V.  Fox  (.38  N.  Y  ,  289),  Syracuse,  (Willis  v.  Chipp,  9  How..  5«8;  Carpen- 
ter v.  Bell.  19  Abb..  258.) 


89G  Forms  Relating  to 

plaintiff  tlien  and  there  accepted  and  received  of  and  from 
this  defendant,  in  full  satisfaction  and  discharge  of  the  said 
sum  in  the  said  [breach  of  covenant]  mentioned,  and  of  the 
damages  of  the  said  plaintiff  by  him  sustained  by  reason  of 
the  said  [breach  of  covenant].' 

[Signature,  etc.,  as  in  form  No.  969.] 
[Verification  as  in  forms  Nos.  151,  etc.] 


No.  1007. 
Answer  of  Discharge  under  the  Insolvent  Law. 

As  in  form  No.  1001  to  [*],  and  from  thence  as  follows : 

That  heretofore  and  on  the day  of ,  18 — , 

an  order  was  duly  made  by  the  county  court  of  

county '  in  a  certain  proceeding  then  pending  therein,  taken 
pursuant  to  chapter  17  of  the  Code  of  Civil  Procedure,  by 
which  the  said  court  did  grant  to  the  said  defendant  a  dis- 
charge from  his  debts,  of  which  order  the  following  is  a 
copy,  to  wit  [insert  copy  of  order]. 

And  this  defendant  further  says,  that  said  debts  and  lia- 
bilities set  forth  in  the  complaint  were  due  or  contracted  at 
the  time  of  the  execution  of  an  assignment  of  his  property 
in  said  proceeding,  as  required  by  section  2175  of  said  Code 
of  Civil  Procedure,  and  that  at  the  time  [of  making  the  said 
several  promises  and  undertaking,  and  every  of  them,  and] 
Avhen  the  petition  was  presented  in  said  proceeding  the  said 
plaintiff  was  a  resident  of  the  State  \or  state  other  facts  so 
as  to  show  that  the  exception  in  section  2183  of  Code  Civil 
Procedure  does  not  apply].' 

[Signature,  etc.,  as  in  form  No.  969.] 

[Verification  as  in  forms  Nos.  151,  etc.] 

*Tbe  accord  must  be  completely  ex-  Allison  v.  Abendroth  (108  N.  Y.,  470), 

ecuted  to  sustain  the   plea.     (Day  v.  Weeks  v.  Zimmerman  (22  State  Rep. , 

Roth,  18  N.  Y.,448  ;  Kromer  V.  Heim,  56),  Carstero   v.    Smalholz   (29   State 

75  N.    Y.,    574.)     See,   also,    Hills  v.  Rep.,  493),  Grant  v.  Teftt  (26  id.,  102), 

Sommer  (53   Hun,  392),  Lawrence  v.  Farmer  v.  Medico  Legal  Journal  Asso. 

Barker  (9  Daly,  140),  Brennan  v.  Os-  (id.,  940),    Rosenfeld  v.  New  (32   id., 

trander  (50  Super.   Ct.,  426).  Fonda-  301),    McKenzie  v.  Harrison   (120  N. 

Vila  V.  Jourgensen  (52id.,  403),  More-  Y.,  260),  Hood  v.   Hayward   (124  N. 

house  V.  Second  Nat.  Bank  (98  N.  Y.,  Y.,  1),  Stuber  v.  McEntee   (47   State 

503),    McDonough    v.    Buffalo     State  Rep.,  94),  Fuller  v.  Kemp  (138  N.  Y., 

Asylum  (96  id.,  640),  Jaffray  v.  Davis  231,  rev'g   S.  C,  40  State   Rep.,  672), 

(124  N.  Y.,  164,  rev'g   48   Hun,  500),  Lesson  v.  Mass.  Mut.  Benefit  Associa- 


Forms  Relating  to 


896a 


tion  (3  Misc.,  415),  Nassoiy  v.  Tom- 
linson  (65  Hun,  491),  Jacobs  v.  Day 
(5  Misc.,  410),  Hathaway  v.  Orient  In- 
surance Co.  (134  N.  Y.,  409),  Wright 
V.  Wright  (74  Hun,  138),  Strauss  v. 
Trotter  (6  Misc.,  77),  Bicknell  v.  Speir 
(7  id.,  108),  Campbell  v.  Hurd  (id., 
235),  Stuber  v.  McEntee  (142  N.  Y., 
200),  Davis  v.  Kiing  (77  Hun,  59S). 

^  See  sections  2 149-2 188  of  Code  Civ. 
Pro.,  for  proceedings  to  obtain  dis- 
charge of  insolvent,  and  that  it  is  suf- 
ficient  under  section   161  of  Code  of 


Procedure  (§  532,  Code  Civ.  Pro.),  to 
say  that  the  judgment  or  determina- 
tion of  the  officer  granting  the  dis- 
charge -was  duly  given  or  made,  see 
Livingston  v.  Oaksmith  (13  Abb.,  183), 
Wheeler  v.  Dakin  (12  How.  Pr.,  542). 

'See  Smith  v.  Bennett  (17  Wend., 
479). 

For  form  of  answer  of  discharge 
under  bankrupt  act,  see  McCormick 
v.  Pickering  (4  N.  Y.,  276),  Henne- 
quin  v.  Clews  (46  N.  Y.  Super.  Ct., 
330). 


"  Miscellaneous  Actioits.  897 

No.  1008. 
Answer  of  Usury. 

As  in  form  No.  1001  to  [^'],  and  from  thence  as  follows : 
That  before  the  making  of  the  promises  and  undertakings 
in  the  said  comi)laint  mentioned,  it  was  corruptly,  and 
against  the  form  of  the  statute  in  that  case  made  and  pro- 
vided, agreed  by  and  between  the  said  plaintiff  and  the  said 
defendant,  that  the  said  plaintiff  should  lend  and  advance 
to  the  said  defendant  the  said  sum  of  four  hundred  dollars 
in  said  complaint  mentioned,  and  that  the  said  defendant 
should  forbear  and  give  day  of  payment  thereof  to  the  said 
defendant  for  twenty  days,  and  that  the  said  defendant,  for 
the  loan  of  the  said  four  nundred  dollars,  and  for  giving 
day  of  payment  as  aforesaid,  should  give  and  pay  the  said 
plaintiff"  the  sum  of  fifty  dollars,  being  more  than  the  law- 
ful interest  upon  the  same,  and  that  in  pursuance  of  the 
said  usurious  and  corrupt  agreements,  the  said  plaintiff  did 
then  and  there  lend  and  advance  to  the  said  defendant  the 
said  sum  of  four  hundred  dollars,  which  said  sum  of  fifty 
dollars  was  paid  by  the  said  defendant  to  the  said  plaintiff 
for  the  forbearance  in  giving  day  of  j)ayment.' 

[Signature,  etc.,  as  in  form  No.  969.] 

[Verification  as  in  forms  Nos.  151,  etc.] 


No.  1009. 

Answer  of  Usury  to  Action  by  Indorsee  against  Drawer  of 

a  Bill,  etc. 

As  in  form  No.  1001  to  [*],  and  from  thence  as  follows: 
That  before  the  making  of  the  said  bill  of  exchange,  to  wit, 

on  the day  of ,  18 — ,  it  wns  corrnptly,  and 

against  the  form  of  the  statute  in  such  case  made  and  pro- 
vided, agreed  by  and  between  the  said  E.  F.  [the  acceptor] 

'  See  Miller  v.  Schuyler  (20  N.  Y.,  ford  (14  Hun,  193),  Morford  v.  Davis 

522),  Manning  v.  Tyler  (21  id.,  567),  .  (28  N.  Y.,  481),  Griggs  v.  Howe  (31 

Dagal  V.  Simmons  (23  id.,  491),  Mer-  Barb.,  100;  afl'M  S.  C,  2  Keyee,  574), 

chants'  Exchange  Nat.  Bank  of  N.  Y.  F.  and  M.  Nat.  Bank  v.  Lang  (22  Hun, 

V.  Commercial  Warehouse  Co.  (49  id.,  372),  Cone  v.  Warner  (18  Woek.  Dig., 

63r)),  Nat.  Bank  of  Auburn  v.  Lewis  90),  Long  Island  Bank  v.  Boynton  (105 

(75  id.,  516  ;  Tt'Vi:;  S.  C,  10  Hun,  4GS  ;  N.  Y.,  656),   Union  Bank  v.  Newman 

8.  C,  81  N.  v.,  I.'',),  Maule  v.  Craw-  (35StateRep.,422),  asto  j.I.-aof  u.Miiry. 


898  Forms  Relating  to 

and  one  G.  H.,  tliat  he,  the  said  G.  H.  [here  state  the 
usurious  agreement;  e.  //.,  as  follows],  should  lend  and  ad- 
vance to  the  said  E.  F.  a  certain  sum  of  money,  to  wit :  the 
sum  of  seven  hundred  and  lifty  dollars,  and  that  he,  the  said 
G.  H.,  should  forbear  and  give  day  of  payment  of  the  said 
siun,  from  the  time  of  lending  and  advancing  the  same 
until  the  10th  day  of  April,  18—,  and  that  for  the  forbear- 
ing and  giving  day  of  jiayment  of  the  said  sum,  tlie  said 
E.  F.  should  give  and  pay  to  the  said  G.  H.  the  sum  of  two 
hundred  and  fifty  dollars  ;  and  that  for  securing  the  lepay- 
meni  of  the  said  sum  of  seven  hundred  and  fifty  dollars,  so 
to  be  lent  and  advanced  as  aforesaid,  together  with  the  said 
further  sum  of  two  hundred  and  fifty  dollars,  on  the  said 
10th  day  of  April,  in  the  year  last  aforesaid,  the  said  de- 
fendant should  make  and  draw  and  endorse,  and  the  said 
E.  F.  should  accept  the  said  bill  of  exchange  in  the  com- 
plaint mentioned,  and  that  the  said  E.  F.  should  deliver  the 
same  to  the  said  G.  H. 

And  this  defendant  further  saith,  that  in  pursuance,  and 
in  part  performance  of  the  said  corrupt  and  unlawful  agree- 
ment, the  said  defendant  afterwards,  to  wit :  on  the  said 

day  of ,  18 — ,  made  and  drew  and  indorsed, 

and  the  said  E.  F.  then  and  there  accepted,  the  said  bill  of 
exchange,  and  the  said  E.  F.  then  and  there  delivered  the 
said  bill  of  exchange  so  made  and  indorsed  and  accepted 
as  aforesaid  to  the  said  G.  H.,  on  the  terms  aforesaid  ;  and 
that  in  further  pursuance  of  the  said  corrupt  and  unlawful 
agreement,  the  said  G.  H.,  afterwards,  to  wit:  on  the  day 
and  year  last  aforesaid,  did  lend  and  advance  to  the  said 
E.  F.  the  said  sum  of  seven  hundred  and  fifty  dollars. 

And  the  said  defendant  further  says,  that  the  said  sum  of 
two  hundred  and  fifty  dollars,  so  agreed  to  be  given  and 
paid  by  the  said  E.  F.  to  the  said  G.  H.  for  such  loan  and 
forbearance  as  aforesaid,  and  so  secured  as  aforesaid,  ex- 
ceeds the  rate  of  [six]  dollars  for  the  forbearing  of  one  hun- 
dred dollars  for  a  year,  contrary  to  the  statute  in  such  case 
made  and  provided.' 

[Signature,  etc.,  as  in  foiTn  No.  969.] 

[Verification  as  in  forms  Nos.  151,  etc.] 

'  See  note  1  to  form  No.  1005.. 


Miscellaneous  Actions. 


899 


No.  1010. 
Answer  that  the  Note  was  Griveu  to  Compound  a  Felony. 

As  in  form  No.  1001  to  [*],  and  from  thence  as  follows : 

That  heretofore  and  on  the day  of ,  18 — , 

one  L.  M.,  the  son  of  the  said  defendant,  had  feloniously- 
stolen,  taken  and  carried  away  [state  the  j)roperty,  or  if  it 
be  another  crime  state  it],  and  the  said  defendant,  in  order 
to  compound  and  settle  the  same  felony,  did  give  and  exe- 
cute the  [note  or  bill,  etc.,  mentioned  in  the  comjjlaint],  and 
that  the  said  note  [or  bill]  was  given  for  and  upon  no  other 
or  different  consideration  whatever.' 

[Signature,  etc.,  as  in  form  No.  969.] 

[Verification  as  in  forms  Nos.  151,  etc.] 


No.  1011. 
Answer  that  Plaintiff  is  Not  a  Corporation. 

(Code  Civ.  Pro..  §  1776.) 

As  in  form  No.  1001  to  [*],  and  from  thence  as  follows : 
That  the  said  plaintiffs  were  not  at  the  time  of  the  com- 
mencement of  this  action,  and  are  not,  a  corporation,  and 
have  no  right  as  such  to  commence  or  prosecute  this  action.' 
[Signature,  etc.,  as  in  form  No.  969.] 

[Verification  as  in  forms  Nos.  151,  ntc] 

'  It  is  not  necessary  to  prove  that  the 
payee  in  terms  agreed  to  compound  a 
crime,  in  order  to  render  the  note  in- 
valid; but  it  is  sufticient  if  that  was 
the  intention  of  the  parties  and  the 
agreement  was  such  as  to  carry  out 
that  intent.  (Conderman  v.  Trenchard, 
68  Barb.,  165;  8.  C,  40  How.,  71; 
S.  C,  8  Lans.,  108  ;  sub  lurin.  Conder- 
man V.  Hicks.) 

See,  also,  Grimes  v.  Hillenbrand  (4 
Hun,  ;]54),  Palmer  v.  Minar  (8  id., 
342),  Haynes  v.  Rudd  (83  N.  Y.,  251 ; 
rev'g  S.  C,  17  Hun,  477  ;  S.  C,  30  id., 
237),  Nickelson  v.  Wilson  (60  N.  Y., 
362),  English  v.  Rumsey  (32  Hun,  486  ; 
8.  C,  in  Week.  Dig.,  204),  Smith  v. 
Crego  (54  Hun,  22),  Bari-ett  v.  Weber 
C125  N.  Y.,  18),  Buffalo  Press  Club  v. 
Greene  (86  Hun,  20 ;  alf'g  26  N.  Y. 
Supp.,  525),  as  to  the  general  i)riti- 
ciples  apjdying  to  this  defense,  at,<J  by 
whom  it  may  be  interj)0Ped. 

'  See  Bengston  v.  The  Thingvalla 
Steamship  Co.  (31  Hun,  96;  S.  C,  18 
Week.  Dig.,  411),  Concnnlia  Havings 
and  Aid  Ass'n  v.  Read  (93  N.  Y.,  474), 


Derrenbacher  v.  Lehigh  Valley  R.  R. 
Co.  (21  Hun,  612  ;  rev'd,  S.  C,  87  N. 
Y.,  636),  Ausonia  Brass  Co.  v.  Conner 
(13  Week.  Dig.,  87),  Trustees  Can. 
Academy  v.  McKei:hnie  (90  N.  Y.,  629, 
630),  Bank  of  Richheld  Sjn-ings  v. 
Clarke  (22  Week.  Dig.  569),  Brooks  v. 
Fai-mers'  Creamei-y  Ass'n  (21  id.,  58), 
Lamson  Consolidated  Store  Service  Co. 
V.  Conynghain  (11  Misc.,  428),  Gold- 
smith V.  Wells  Co.  (86  Hun,  489). 

Section  1770,  Code  Civ.  Pro.,  is 
simply  a  re-enactmeut  of  the  old  law. 
(93  N.  Y.,  supra,  p.  477.)  See  I\Iafter 
of  Broaiiwiiy  and  Seventh  Ave.  R.  Co. 
V.  Acker  (73  Hun,  7),  that  that  sec- 
tion has  no  aj)plii:ation  to  proceeding 
for  c()nd(;ninaU(iu  of  real  jirojierty, 
the  answer  in  which  is  i'egul;ited  by 
the  jirovislonsof  §3365,  Code  Civ.  Pro. 

It  was  h.dd  under  2  R.  K.,  458,  §  3, 
an  ani'd  liy  ch.  422,  Laws  of  1864,  of 
which  lliis  section  is  a  revision,  that 
its  provisions  were  not  npi)li('ablu  to  a 
national  bank.  (N.  Y.  Nat.  Hx.  Bank 
V.  Jones,  9  Daly,  248  [Gen.  Tm.].) 


900  Forms  Relating  to 

No.  1012. 
Answer  that  Note  was  Given  for  Gambling. 

As  in  form  No,  1001  to  [*],  and  from  thence  as  follows: 
That  before  the  making  of  the  said  promissory  note  in  the 
said  complaint  mentioned,  the  said  plaintiff  and  the  said 
defendant  played  together  at  a  game  called,  etc.,  for  divers 
snms  upon  tick  and  credit,  and  not  ready  money  ;  and  the 
said  plaintiff,  at  said  game,  won  of  the  said  defendant,  and 

the  said  defendant  then  and  there  lost  the  sum  of 

dollars,  whereof  no  part  was  then  and  there  paid  by  the 
said  defendant  to  the  said  plaintiff  ;  and  afterwards,  to  wit, 

on  the day  of .  18 — ,  the  said  defendant 

gave  and  made  to  the  said  plaintiff  the  aforesaid  promissory 
note,  for  the  said  sum  of  money  so  lost  by  the  said  defend- 
ant and  won  by  the  said  plaintiff  at  the  said  game,  by 
reason  whereof  the  said  note  is  void  in  law.' 

[Signature,  etc.,  as  in  foi-m  No.  969.] 

[Verification  as  in  forms  Nos.  151,  etc.] 


No.  1013. 
Answer  of  Statute  of  Frauds  in  Action  on  a  Guaranty. 

As  in  form  No.'  1001  to  [*],  and  from  thence  as  follows : 
That  the  said  several  supposed  promises  and  undertakings, 
in  the  said  complaint  mentioned,  were  si:)ecial  promises,  and 
each  of  them  was  a  special  promise  for  the  debt  of  another 
person,  to  wit,  J.  C,  and  that  no  agreement  in  respect  of, 
or  relating  to,  the  supposed  causes  of  action  in  the  said  com- 
plaint mentioned,  or  either  of  them,  nor  any  memorandum 
or  note  thereof,  was  or  is  in  writing,  or  was  or  is  signed  by 
the  said  defendant,  or  by  any  other  person  by  him  there- 
unto lawfully  authorized,  according  to  the  form  of  the  stat- 
ute in  such  case  made  and  provided.^ 

[Signature,  etc.,  as  in  form  No.  969.] 

[Verification  as  in  forms  Nos.  151,  etc.] 

'  See  3  R.  S.  (7tli  ed.),  1963,  §  16  ;  "  As  to  the  necessity  of  pleading  this 

Stannard  v.  Eytinge  (5  Robt.,  90  ;  S.  defense    in    action    on     contract     for 

C,  33  How.,  262  ;  3  Al)b.  [N.  S.].  42),  damages,  see  Blanck  v.  Littell  (9  Daly 

Vi?scher  v.  Bogg  (21  Week.  Dig.  399;  268;. 

aff'd  106  N.  Y.,  674),  May  v.  Burras  "Where  a  contract   is   clearly,  upon 
(13  Abb.  N.  C,  384.) 


Miscellaneous  Actions.  901 

• 

No.  1014. 
Answer  of  Arbitrameut  and  Award. 

As  in  form  No.  1001  to  [*],  and  from  thence  as  follows : 
That  after  the  making  of  the  said  several  promises  in  the 
said  complaint  mentioned,  and  before  the  commencement 

of  this  action,  and  on  the day  of ,  18 — , 

said  plaintiff  and  the  said  defendant  submitted  themselves, 
as  required  by  law,  by  an  instrument  in  writing  duly  ac- 
knowledged [or  proved]  and  certilled,  in  like  manner  as  a 
deed  to  be  recorded '  [or  state  other  mode  of  submission], 
and  engaged  [thereby]  in  all  things  well  and  truly  to  keep, 
obey  and  perform  the  award,  arbitrament  and  hnal  deter- 
mination of  A.  B.  [and  C.  D.]  arbitrators,  indifferently 
elected  and  named  as  well  on  the  part  and  behalf  of  the 
plaintiff  as  of  the  defendant,  to  arbitrate,  award  and  deter- 
mine, of  and  concerning  all  and  all  manner  of  action  and 
actions,  and  cause  and  causes  of  action  and  of  all  controver- 
sies and  demands  whatsoever,  at  any  time  theretofore  had, 
made,  committed  or  depending  by  and  between  the  said 
parties  or  either  of  them,  so  as  the  said  award  should  be 
made  by  the  said  arbitrators  under  their  hands,  and  ready 
to  be  delivered  to  the  parties  in  difference  or  such  of  them, 

as  should  desire  the  same,  on  or  before  the day  of 

then  next  [or  insert  a  copy  of  the  instrument ;  or 

describe  the  particular  matters  submitted]  (which  time  for 
making  the  said  award  was  afterwards  and  before  the  time 
for  making  the  same  expired,  by  consent  of  the  said  plain- 
tiff and  of  the  said  defendant,  enlarged  until  the 

day  of ,  18 — ),  and  it  was  then  and  there  agreed 

by  and  between  the  said  plaintiff  and  the  said  defendant 
that  the  award  made  before  that  time  should  be  binding 
and  conclusive  between  them. 

And  the  defendant  further  says,  that  the  said  arbitrators, 

its  face,  within  the  statute  of  frauds,  it  '  For  provisions  relating  to  arbitra- 

is  upon  the  plaintiff  to  show  the  facts  tions,  see  sections  23(55-2386  of  Code 

hy  which  he  desires  to  take  it  out  of  Civ.  Pro. 

the  statute.     (Millar  v.  Fitzgihbons,  9  As  to  how  far  these  provisions  affect 

Daly,  505;  S.  C,  12  "Week.  Dig.,  237.)  a  submission  made  otherwise  than  as 

See,  further,  as  to  this  plea,  Alger  prescribed    therein,   see   section  238G 

V.   Johnson    (4   Ilun,    412),    Crane   v.  (.yw^^a),  and  McNulty  v.  Solley  (95  N. 

Powell  (1.39  N.  Y.,  :',79),  Myers  v.  Dor-  Y.,  242). 

man  (34  Ilun,  115),  Marie  v.  Garrison  The  submission  is  in  legal  effect  a 
<13  Abl).  N.  C,  210,  278,  30G). 


902  Foinrs  Kklatixg  to 

before  tlie  expiration  of  the  said  last  mentioned  time  limited 
for  making  tlieir  award,  took  upon  themselves  the  bnrden 
of  the  said  arbitration,  and  having  duly  examined  and  con- 
sidered the  subject  matters  in  dispute  between  the  said 
plaintiff  and  the  said  defendant,  the  said  arbitrators  did 
make  an  award  in  writing,  under  their  hands,  of  and  con- 
cerning the  premises,  and  of  and  concerning  the  said  premi- 
ses and  undertakings  in  the  said  complaint  mentioned  [and 
delivered  the  same  to  (said)  A.  B.,  the  (attorney  for  the) 
plaintiff  {or  defendant),  or  filed  the  same  in  the  office  of  the 

(county  clerk  of county)],  and  did  thereby  then 

and  there  award  that  [here  set  forth  the  aw^ard] '  [and  that 

said  award  w^as  afterwards  duly  confirmed  by  this 

court,  in  the  manner  jjrovided  hy  law  and  by  said  instru- 
ment, and  that  a  judgment  was  duly  entered  upon  said 
award  against  the  said  (defendant)  in  favor  of  said  (plain- 
tiff) as  provided  by  law  and  by  said  instrument  of  submis- 
sion on  the day  of ,  18 — ,  for  (state  relief)].* 

That  said  amount  awarded  has  been  paid  [or  tendered]  to 
the  plaintiff  by  defendant  [or  that  the  said  award  has  been 
duly  performed  by  said  defendant  on  his  part]  before  the 
commencement  of  this  action/ 

[Signature,  etc.,  as  in  form  No.  969.] 

[Verification  as  in  forms  Nos.  151,  etc.] 


No.  1015. 

Answer  of  Judgment  Recoyered. 

As  in  form  No.  1001  to  [*],  and  from  thence  as  follows : 
That  the  said  plaintiff  heretofore,  and  on  or  about  the 
day  of  ,  18 — ,  in  this  court,  recovered  a 

discontinuance   of  an  action  pending-  'That  the  substance,  at  least,  of  the 

upon  the  cause  of  action  submitted,  award  must  be  alleged,  see  Gihon  v. 

(Id.)  Levy  (2  Duer,  176). 

*  See  Armstrong  V.  Hasten  (llJohns.,  A  valid   award   made   by  an  arbi- 

189),  Brazil  v.  Isham  (1  E.  D.  Smith,  trator  upon  a  cause  of  action,  is  a  bar 

437),   Cole   V.    Blunt   (2   Bosw.,    116),  to  a  suit  thereon,  although  the  award 

Giles  Lithographic,  etc., Co.  v.Recamier  has  not  been   performed.     (Brazillv. 

Manuf.  Co.    (15   State   Rep.,  354),  as  Isham,  12  N.  Y.,  9.)     See,  also.  New 

to  necessity  of  averring  performance,  York  Lumber,   etc.,   Co.  v.   Schneider 

and  in  what  cases.  (119  id.,  475). 

'  This  may  be  alleged  when  the  facts  To  entitle  a  defendant,  in  a  suit,  to 

justify  it.  insist  upon  an  award  upon  the  cause 


Miscellaneous  Actions.  908 

judgment  against  this  defendant  for  the  sum  of 

dollars-  for  the  same  causes  of  action  as  in  this  complaint 
mentioned  and  contained,  as  will  appear  by  the  judgment 
roll  of  the  said  action  tiled  in  the  office  of  the  clerk  of  the 
county  of ,  on  the  day  aforesaid,  which  said  judg- 
ment still  remains  in  force  and  effect.' 

[Signature,  etc.,  as  in  form  No.  969. J 
[Verification  as  in  forms  Nos.  151,  etc.] 


No.  1016. 
Answer  Claiming  Set-off. 

As  in  form  No.  1001  to  [*],  and  from  thence  as  follows : 
That  at  the  time  of  the  commencement  of  this  action,  the 
plaintiff  was,  and  still  is,  indebted  to  this  defendant  in  the 

sum  of for  the  work,  labor,  care  and  diligence  of 

this  defendant  and  his  servants  and  workmen  for  the  said 

plaintiff,  and  at  his  request,  which  said  sum  of 

dollars  the  defendant  hereby  claims  should  be  set  off  and 
allowed  to  the  defendant  against  the  said  plaintiff,  and 
demands  judgment  in  his  favor  for  the  balance  thereof, 

to  wit :  the  sum  of dollars,  together  with  the  costs 

of  this  action. 

[Signature,  etc.,  as  in  form  No.  969.] 

[Verification  as  in  forms  Nos.  151,  etc.] 


TITLE  V. 

FORMS  RELATING  TO  OTHER  ACTIONS  BY  AND  AGAINST  PAR- 
TICULAR PARTIES. 

Article  First. 

ACTION  BY  OR  AGAINST  AN  UNINCORPORATED  ASSOCIATION. 

CCode  Civ.  Pro.,  Ch.  15,  Tit.  5,  Art.  1.) 
No.  1017.     Complaint  in  action  by  or  against  association  consisting  of  seven 
or  more  persons. 

of  action  as  a  bar,  he  must  allege  it  as  of    the    award    appeared     from    the 

such  in  his  answer.     (Id.)  plaintiff's  evidence.     (Id.) 

And  where  in  an  action  on  an  ac-         'See  Krekeler  v.  Hitter  (G2  N.  Y., 

count  the  answer   merely  denied  the  372),   Southern   Life   Ins.    and   Trust 

allegations  in   the  complaint.      Held,  Co.  v.  Davis  (4  Edw.  Ch.  588),  King  v. 

that   the   defendant   could   not   insist  Townshend  (65  Hun,  5(j7,  aff'd  141  N. 

ui»on  an  award  made  upon  the  account  Y.,  358),  Maasa  v.  Cutting  (28  Week. 

aH  a  bar  to  the  suit,  although  tlit;  fact  Dig.,  380). 


904  Forms  Relating  to 

No.  1018.     Affidavit  to  move  for  substitution  on  death,  etc. ,  of  the  officer  of 
such  association  aii^ainst  whom  action  is  brought. 

1019.  Notice  of  motion  for  substitution  of  president,  etc.,  of  such  asso- 

ciation. 

1020.  Order  substituting  president,  etc.,  of  such  association. 

1021.  Execution  upon  money  judgment  in  action  against  such  associa- 

tion. 
1032.     Complaint  in  action  against  members  of  such  association. 


No.  1017. 


Complaint  in  Action  by  or  against  Association  Consisting 
of  Seven  or  More  Persons. 

(Code  Civ.  Pro.,  §  1919.) 

[Title  of  cause.] 

The  complaint  of  the  above  named  plaintiff  respectfully 
shows,  that  at  the  time  of  the  making  of  the  [promissory 
note]  hereinafter  mentioned  and  set  forth,  and  at  the  time 
of  the  commencement  of  this  action,  the  [name  of  associa- 
tion] was,  and  now  is,  an  unincorporated  association,  consist- 
ing of  seven  or  more  persons,  and  that  the  defendant  [or 
plaintiff]  is,  and  was  at  the  time  of  the  commencement  of 
this  action,  the  president  [or  treasurer!  of  said  association. 

That  [here  set  forth  the  facts  constituting  the  cause  of 
action,  and  conclude  with  prayer  for  judgment  as  follows] : 

Wherefore  the  plaintiff  demands  judgment  [against  the 
said  defendant]  as  such  president  [or  treasurer],  for,  etc' 
[Signature,  etc.,  as  in  form  No.  969.] 

[Verification  as  in  forms  Nos.  151,  etc.] 


'  The  word  president,  or  treasurer,  See,  also  National  Bank  v.  Van  Der- 

as  used  in  section  1919  of  Code  Civ.  werker  (74  N.  Y  ,  234),  Saltsman  v. 

Pro.,  means  a  president  or  treasurer  Shults(14  Hun,256),  Poultney  v.  Bach- 

eo  nomine,  or  persons  discharffinc:  the  man  (10   Abb.   N.   C,  252),  Flagg  v. 

ordinary  functions  and  duties  of  such  Swift  (25  Hun,  623),  Ebbinghousen  v 

officer  under  another  name.     (Hatha-  Worth  Cub  (4  Abb.  N.  C,  300),  Park 

way  V.  Americnn  M.  S.  Exchange,  18  v.  Spaulding  (10  Hun.  128),  Shaw  v. 

Week.  Dig.,  328;  S.  C,  31  Hun,  575.)  Cock  m  Hun,  173;  S    C  aff'd,  78  N. 

As  to  action  for  libel  against  joint-  Y.,  194).  ]\IcGuffin  v.  Dinsmore  (4  Abb. 

stock  association,  see  Duncan  v.  .Tones  N.  C,  241),  among  other  cases,  gener- 

(39  Hun,  12\  Van  Arnam  v.  McCime  ally  as  to  this  action,  also  Brooks  v. 

(19  Week.  Dig.,  412 ;  S.  C,  32  Hun,  F.  C.  Ass'n  (21  W.   D.,  58),  Soule  v. 

3ie).  Mogg  (21  id,,  186),  Sanders  v.  Euling 


Forms  Relating  to 


904a 


(8  Civ.  Pro.  R.,  166),  Van  Aernam  v. 
Bleistein  (102  N.  Y.,  355),  Laws  of 
1894.  ch.  235;  People  ex  reL  Win- 
chester V.  Coleman  (133  N.  Y.,  279), 
McCabe  v.  Goodfellow  (39  State  Rep., 
941),  McKane  v.  Adams  (123  N.  Y., 
609),  Wells  V.  Monihan  (35  State  Rep., 
494),  Wicks  v.  Monihan  (54  Hun,  614), 
Ebbinghousen  v.  Worth  Club  (4  Abb. 
N.  C,  300,  note),  Loubat  v.  Le  Roy 
(15  id.,   44,  Tiote),  Matter  of  Carpen- 


ters and  Joiners'  Union  (17  id.,  112, 
note),  McCabe  v.  Goodfellow  (133  N. 
Y.,  89 ;  44  State  Rep.,  253),  Wells  v. 
Monihan  (129  N.  Y.,  161,  aff'g  S.  C, 
supra),  Wicks  v.  Monihan  (130  id., 
232,  aflPg-  S.  C,  supra),  Burt  v.  The 
Oneida  Community  (137  id.,  346),  Mat- 
thews V.  Associated  Press  of  N.  Y. 
(136  id.,  333),  Schwartz  v.  Wheeler 
(29  Abb.  N.  C,  332),  Manzinger  v. 
Courier  Co.  (82  Hun,  575). 


Actions  by  or  Against  Associations.  905 

No.  1018. 

Affidavit  to  Move  for  Substitutiou  on  Death,  etc.,  of  the 
Oflflcer  of  such  Association,  Consisting  of  Seven  or  More 
Members,  against  wliom  Action  is  Brought. 

(Code  Civ.  Pro.,  §  1920.) 

[Title  of  cause.  ] 
County,  ss.: 

A.  B.,  of  ,  being  duly  sworn,  says,  that  he  is 

[description  of  affiant]. 

That  this  action  was  brought  against  [or  by]  C.  D.,  as 
president  {or  treasurer],  of  the  [name  of  association]. 

That  since  the  commencement  of  this  action  the  said  C. 
D.  has  died  [or  state  other  incapacity],  and  that  E.  F.  has 
succeeded  to  the  presidency  [or  treasurership]  of  the  said 
association  [or  that  E.  F.  is  now  the  treasurer  {or  president) 
of  said  association]. 

A.  B. 

[Jurat  as  in  form  No.  46.] 


No.  1019. 
Notice  of  Motion  for  Substitution  of  President,  etc. 

(Code  Civ.  Pro.,  §  1920.) 

As  in  form  No.  324  to  ['^],  and  from  thence  as  follows : 
For  an  order  substituting  E.  F.,  as  president  [or  treasurer], 
of  the  [name  of  association],  as  defendant  [or  i)laintiff],  in 
the  above  entitled  action,  in  place  of  C.  D.,  against  whom 
such  action  is  brought ;  and  that  said  action  be  continued 
by  [or  against]  said  E.  F.  as  such  president  [or  treasurer] 
[with  costs  of  such  motion]. 

Dated ,  18 — . 

M.  H.,  Plaint ir^'' s  'or  Defendant s\  Attorney, 
[Office  address.'] 

To  F.  R.,  Esq.,  Attorney  for . 

'  See  note  2  to  form  ^o.  13Sb 
114 


.906  FoEMS  Relating  to 

No.  1020. 
Order  Substituting  President,  etc.,  of  Association. 

(Code  Civ.  Pro.,  §  1920.) 

[At,  etc.,  as  in  form  No.  80.] 
[Title  of  cause.] 

On  reading  and  tiling  the  affidavit  of  A.  B.,  dated  — 


18 — ,  and  [name  other  motion  papers],  with  proof  of  due  ser- 
vice of  a  copy  of  said  affidavit,  with  notice  of  this  motion, 

on  F.  R.,  attorney  for ,  and  on  reading  and  tiling 

[name  opposing  papers],  and  on  motion  of  M.  H.,  counsel 
for  the  plaintiff  [or  defendant],  after  hearing,  etc. : 

It  is  hereby  ordered,  that  E.  F.,  as  president  [or  treas- 
urer] of  the  [name  of  association],  be  and  he  is  hereby  sub- 
stituted as  defendant  [or  plaintiff]  in  the  above  entitled 
action  in  place  of  C.  D.,  against  whom  such  action  is 
brought,  and  that  said  action  be  continued  by  [or  against] 
said  E.  F.  as  such  x)resident  [o7'  treasurer]  [with  ten  dollars 
'^osts  of  this  motion  to  the ]. 


No.  1021. 


Execution  upon  Money  Judgment  in  Action  against 
Association. 

(Code  Civ.  Pro.,  §  1921.) 

As  in  form  No.  556  to  [ff],  and  from  thence  as  follows : 
Out  of  any  personal  jDroperty  belonging  to  the  [name  of 
association],  or  owned,  jointly  or  in  common,  by  all  the 
members  thereof,  and  to  return,  etc.  [as  in  form  No.  556  to 

end  thereof]. 

[Signature,  etc.,  as  in  form  No.  556.] 

[Indorsement  as  in  form  No.  660.] 


No.  1022. 
Complaint  in  Action  against  Members  of  Such  Association. 

(Code  Civ.  Pro.,  §1922.) 

[Title  of  cause.] 
The  complaint  of  the  above  named  plaintiff  respectfully 


Actions  by  or  Against  Associations.  907 

shows,  that  the  [name  of  association]  is,  and  has  been  since 
the day  of ,  18 — ,  an  unincorporated  asso- 
ciation consisting  of  seven  or  more  persons,  located  in  the 

of ,  and  tliat  the  defendants  are  [a  part  of] 

the  members  thereof. 

That  on  the day  of ,  IS — ,  an  action  was 

brought  in  the Court  by  the  plaintiff  against  C.  D., 

as  president  [or  treasurer]  of  said  [name  of  association],  upon 
the  cause  of  action  hereinafter  mentioned  and  set  forth  ;  and 

that  on  the day  of ,  18 — ,  a  judgment  was 

duly  recovered  in  said  action  in  favor  of  the  said  jDlaintiff 

therein,  for  the  sum  of dollars  damages,  and 

dollars  costs,  against  said  C.  D.,  as  president,  etc. 

That  the  judgment  roll  in  said  action  was  filed,  and  said 

judgment  duly  docketed,  in   the county  elerk's 

office  in  which  county  said  action  was  triable,  on  the 

day  of  ,  18 —  [and  a  transcript  of  said  judgment 

was  duly  filed  and  said  judgment  Avas  duly  docketed  in  the 

county  clerk's  office,  on  the day  of , 

18-]. 

That  an  execution  was  afterwards,  and  on  the 

day  of ,  18 — ,  duly  issued  ui)on  said  judgment  to 

the  sheriff  of county,  and  that  said  execution  has 

been,  since  and  before  the  commencement  of  this  action, 
duly  returned  wholly  unsatisfied  [or  unsatisfied  to  the  ex- 
tent of dollars,  etc.]. 

[Here  set  forth  cause  of  action,  and  conclude  with  prayer 
for  judgment  as  follows:] 

Wherefore  the  i)laintiff  demands  judgment  against  the 
defendants  for  [amount  remaining  unpaid  of  claim],  with 

interest,  etc.,  and  for dollars  costs  of  said  first 

mentioned  action,  which  remain  uncollected  by  virtue  of 
said  execution,  and  for  the  costs  of  this  action.' 

[Signature,  etc.,  as  in  form  No.  969.] 

[Verification  as  in  forms  Nos.  151,  etc.] 

'Ab  to  the  right  to  bring-  an  action  "An  act  in  relation  to  joint  stock  asao- 

against  the  members  without  having  ciations  conBtitutiiig  chapter  45  of  the 

first  exhausted  the  remedy  against  the  general    laws,"  chapters  245  of  Laws 

association,  see  Fiagg  V.  Swifi  (25  Hiui,  of  1854,  28!)  of  Laws  of  18(57,  and  605 

62:5),  Park  v.  Spaulding  (10  Hun,  12S),  of  Laws  of  1885  are  repealed. 
Code   Civ.    Pro.,  §  [VS.l,  and  see  Mi-.         Tliat    where    an    action     has    been 

Tbroop's   note    to    that   sectif)n  in  his  brought   against  th(i  members  of  the 

code,  anrl  the  cases  cited  in  note  1,  )>.  association,  as  prescribed  in  subdivis- 

904,  to  form  No.  1017.  By  section  9  of  ion  1  of  section  1922,  Code  Civ.  Pro., 
chapter  235  of   Laws  of  1894,  entitled 


908  Forms  Kelating  to 


Article  Second. 

FORMS  RELATING  TO  ACTIONS  BY  OR  AGAINST  CERTAIN 
COUNTY,  TOWN  AND  MUNICIPAL  OFFICERS. 

(Code  Civ.  Pro.,  Ch.  15,  Tit.  5,  Art.  3.) 

No.  1023.     Compliunt  in  action  by  a  tax-payer  against  a  public  officer,  agent, 

commissioner,  etc. 
1024.     Complaint  in  action,  by  town  officer,  under  section  1926,  Code  of 

Civil  Procedure. 
1035.     Proceeding  to  substitute  successor  in  office,  on  death,  etc.,  of  party 

sued  in  official  capacity. 


No.  1023. 

Complaint  in  Action  by  a  Tax-payer  against  a  Public 
Oflicer,  Agent,  Commissioner,  etc. 

(Code  Civ.  Pro.,  i^  1935.) 

[Title  of  cause.] 

The  plaintiffs  in  this  action  for  complaint  therein  allege, 
that  they  are  each  freeholders,  residents  and  tax -payers  of 
the  town  of  S.,  in  the  county  of  W.  and  State  of  N.  Y.,  and 
that  they  have  and  own  real  estate  and  property  in  said 
town  and  subject  to  taxation  therein  ;  that  they  and  each 
of  them  are  assessed  for  and  liable  to  j^ay  taxes  therein,  and 
also  have  paid  taxes  therein  within  one  year  previous  to  the 
commencement  of  this  action. 

The  plaintiffs  further  allege,  that  there  are  upwards  of 
three  hundred  persons  owners  of  real  estate  and  residents 
of  said  town  of  S.,  who  are  assessed  for  and  liable  to  pay 
taxes  therein,  and  who  have  a  common  interest  with  the 
above  named  plaintiffs  in  this  action  and  the  subject  matter 
thereof. 

That  the  persons  and  parties.interested  are  so  very  numer- 
ous as  to  make  it  impracticable  to  bring  them  before  the 


the  time  for  the  commencement  of  the  For  statement  to  he  filed  by  persons 

action  by  or  against  the  officer,  and  composing  such  an  association  or  firm 

the  return  of  the  first  execution  issued  under  section  1945  of  Code  Civ.  Pro., 

upon    the    final    judgment    rendered  to  entitle  them  to  be  made  parties  to 

therein,  is  not  a  part  of  the  time  lim-  an  action  against  the  members,  see 

ited  by  law  for  the  commencement  of  form  No.  1033,  post. 
the  second  action,  see  Code  Civ.  Pro., 
§  1933. 


■Actions  by  or  Against  Public  Officers.        909 

court,  and,  therefore,  the  above  named  plaintiffs  sue  for 
themselves  as  well  as  in  behalf  and  for  the  benefit  of  all  of 
the  parties  having  a  common  or  general  interest  in  this 
action  or  the  subject  matter  thereof. 

[Then  follows  the  statement  of  the  cause  of  action,  and 
the  complaint  concludes  with  a  prayer  for  judgment,  as 
follows :] 

The  plaintiffs  from  and  upon  the  facts  hereinabove  set 
forth  ask  the  order  or  decree  of  this  court,  that  the  said  so- 
called  bonds  signed  by  said  so-called  commissioners  and  in 
the  possession  of  the  defendant,  the  "Attica  and  Arcade 
R.  R.  Co.,"  its  officers  or  agents,  or  claimed  to  be  owned 
by  them,  shall  not  be  sold  or  delivered  to  any  person  or 
persons  whatsoever,  but  shall  be  cancelled  and  destroyed 
and  be  adjudged  void  and  of  no  effect,  and  that  the  said  so- 
called  commissioners  shall  do  no  act  or  thing  as  such  com- 
missioners tending  to  create  any  indebtedness  against  said 
town  or  against  the  plaintiffs  or  their  property,  or  against 
the  other  tax-payers  or  their  property  whom  the  plaintiffs 
represent,  and  that  the  said  defendant,  A.  J.  K.,  the  collector 
of  said  town,  shall  not  collect  the  said  sum  of  seven  hundred 
dollars,  or  any  part  thereof,  out  of  the  proj)erty  of  the  said 
plaintiffs  or  the  said  town  of  S.,  or  out  of  the  propertj'  of 
the  other  tax-payers  whom  the  plaintiffs  represent,  and 
that  he  shall  not  pay  the  said  seven  hundred  dollars,  or  any 
part  thereof,  to  the  said  so-called  commissioners,  and  that 
the  said  so-called  commissioners  shall  not  receive  the  said 
seven  hundred  dollars,  or  any  part  thereof,  or  pay  the 
same,  or  any  part  thereof,  as  interest  on  the  so-called  town 
bonds,  and  that  during  the  pendency  of  this  action  each 
and  all  of  the  said  defendants,  their  employees,  officers, 
agents,  attorneys  or  representatives,  and  all  other  persons, 
be  enjoined  and  restrained  by  injunction  from  doing  any 
act  or  thing  above  mentioned,  or  any  other  act  or  thing  in 
the  collection  of  the  said  seven  hundred  dollars  or  paying 
over  the  same  or  any  part  thereof,  and  that  they  be  re- 
strained from  collecting  any  interest  or  principal  to  pay 
said  so-called  bonds,  or  any  part  thereof,  or  the  interest 
warrants  or  coupons  annexed  to  tlie  said  so-called  bonds  or 
any  of  them,  and  that  by  a  final  decree  of  this  court  the 


010 


Forms  Relating  to 


said  injunction  be  made  perpetual,  and  for  such  further  or 
other  relief  in  the  premises  as  may  be  deemed  just  and 

equitable  by  the  court. 

T.  C,  Attorney  for  Plaintiff. 
[Office  address,'] 
[Verification  as  in  forms  Nos.  151,  etc.  J 


No.  1024. 

Complaint  iu  Action  by  town  Officer  under  Section  1926, 
Code  of  Civil  Procedure. 

(Code  Civ.  Pro.,  §  1926.) 

[Title  of  cause.] 

The  complaint  of  the  above  named  plaintiff  respectfully 
shows  to  this  court,  that  the  town  of  L.  is  one  of  the  towns 
in  the  county  of  S.,  and  State  of  N.  Y.,  and  the  plaintiff  is 
its  supervisor. 

That  the  N.  Y.  and  O.  M.  R.  R.  Co.  was  a  corporation 
duly  organized  under  the  laws  of  the  State  of  N.  Y.,  and 
that  such  company  constructed  and  put  in  operation  a  rail- 
road in  said  State,  known  as  the  N.  Y.  and  O.  M.  railroad. 


'  This  form  is  taken  from  the  com- 
plaint in  Metzger  v.  Attica  and  Arcade 
R.  R.  Co.  (79  K  Y.,  171),  brought 
under  chapter  161  of  Laws  of  1872, 
of  which  section  1925,  Code  Civil 
Procedure  is  a  revision.  The  com- 
plaint in  the  case  of  Ayers  v.  Law. 
rence  (59  N.  Y.,  192),  which  is  said  in 
the  opinion  of  Allen,  J.,  therein  to 
have  been  "the  first  instance  in  which 
the  act  of  1872  (ch.  161),  for  the  protec- 
tion of  tax-payers  against  the  frauds, 
embezzlements  and  wrongful  acts  of 
public  oflBcers  and  agents  came  under 
review"  in  the  Court  of  Appeals,  "or 
was  relied  upon  to  sustain  an  action," 
contains  a  similar  statement,  and  is 
upon  a  like  cause  of  action.  And  see 
further  as  to  actions  under  that  act  and 
under  this  section  and  as  to  when  such 
actions  can  be  maintained,  Lutes  v. 
Briggs  (64  N.  Y.,  404 ;  rev'g  S.  C,  5 
Hun,    67),    Latham    v.    Richards    (12 


Hun,  360,  the  appeal  in  which  was 
dismissed  in  Ti  N.  Y.,  607),  Sherman  v. 
Trustees  of  Clifton  Springs  (27  Hun, 
■390,  392),  Alvord  v.  Syracuse  Savings 
Bank  (20  Week.  Dig.,  153;  34  Hun, 
143),  Bird  v.  The  Mayor,  etc.  (19 
Week.  Dig.,  571). 

As  to  supplemental  complaint  in  this 
action,  see  Latham  v.  Richards  (15 
Hun,  129). 

That  an  injunction  may  issue  therein 
'pendente  lite,  see  Ilurlburt  v.  Banks  (1 
Abb.  N.  C,  157;  52  How.  Pr.,  176). 
An  injunction  was  denied  in  Hull  v. 
Ely  (2  Abl).  N.  C,  440),  on  the  ground 
that  the  action  did  not  ap])ear  to  be 
brought  in  good  faith  by  the  plaintiff 
as  a  tax-payer,  to  protect  his  interests 
as  such,  but  to  protect  the  interests  of  a 
rival  claimant  of  the  franchises  sought 
to  be  enjoined.  See,  also,  amend- 
ment to  section  1925,  Code  Civ.  Pro., 
by  ch.  524  of  Laws  of  1892,  by  which 


Actions  by  or  Against  Public  Officers.        911 

which  said  road  was  constructed  and  operated,  and  is  still 
being  operated,  through  the  said  town  of  L. 

That  on  the day  of ,  18 — ,  an  act  was 

passed  by  the  legislature  of  the  State  of  N.  Y.,  entitled 
"An  act  to  subject  the  real  and  personal  property  of  the 
N.  Y.  and  0.  M.  railroad  to  taxation,  and  to  appropriate 
the  amount  of  the  county  taxes  to  certain  towns,  to  be  ap- 
plied toward  the  payment  of  the  interest  or  principal  on 
certain  town  bonds,"  being  chapter  296  of  the  Laws  of  1874, 
of  which  act  the  following  is  a  copy  [here  is  inserted  copy 
of  said  act]. 

The  plaintiff  further  alleges,  that,  before  the  passage  of 
the  said  act,  the  said  town  of  L.  issued  its  bonds  in  aid 
of  the  construction  of  the  said  N.  Y.  and  0.  M.  railroad, 
under  and  by  virtue  of  the  provisions  of  acts  of  the  legis- 
lature [describing  same],  and  which  said  acts  are  referred 
to  in  the  act  hereinbefore  set  forth,  and  which  said  bonds  to 
a  large  amount  were  outstanding  at  the  time  of  the  passage 
of  the  act  hereinbefore  set  forth,  and  are  still  outstanding 
and  unpaid,  and  upon  which  said  bonds  the  interest  is 
payable  semi-annually. 

The  plaintiff  further  alleges,  that  in  each  and  every  year 
since  the  issue  of  said  bonds,  the  said  town  has  had  com- 
missioners, who  were  appointed  for  said  town  under  the 
provisions  of  the  said  acts  of  the  legislature  which  are  re- 
ferred to  in  the  act  hereinbefore  set  forth,  which  said  com- 
missioners have,  at  all  times,  been  duly  qualified,  and  have 
been  acting  as  such  under  the  provisions  of  said  statute. 

The  plaintiff  further  alleges,  that  under  and  in  pursuance 
of  the  provisions  of  said  chapter  296  of  the  Laws  of  1874, 
the  real  property  of  the  said  N.  Y.  and  O.  M.  R.  R.  Co. 
consisting  of  the  said  road  and  lands  and  buildings  con- 
nected therewith,  and  of  the  appurtenances  thereto  belong- 
ing, and  located  in  said  town  of  L.,  has  been  in  each  year, 
since  the  passage  of  said  act,  duly  assessed  by  the  board  of 
assessors  of  said  town  ;  and  that  in  each  and  every  of  said 
years  [naming  them],  under  and  by  virtue  of  the  warrant 
for  the  collection  of  taxes  in  said  county,  issued  by  the 
board  of  supervisors  of  said  county,  there  has  been  levied 
and  collected  upon  the  said  property  of  the  said  raih'oad 

a  resident  corporation  may  maintain  (130  id.,  894,  rev'g  8.  C,  65  Hun,  91), 

the  action  under  the  Hame  circuuiHtari-  JJoyle  v.  Grant  (36  State  Rcj).,  207), 

ces  and  conditioriH  aH  a  reHideiit  ciii/eii  Olp  v.  Loddick   (3H  id.,  122);  2J  Abb. 

(Laws  of  18H2,  p.  10r)2),  and  nee  Tal-  N.  C,  26  ;  ArniHlront,'    v.  Griinl    (r»o 

cott  V.  City  of  Buffalo  {V2T)  N.  V..  280,  Hun,  226),  Calhoun  v.  Millard  (121  N. 

rev'g    S.   C,   f)?    Hun,  4;{),  ZiHj,der  v.  Y.,  <J9),  Betibe  v.  SujuirvmorH  of  Huili- 

Chapin  (126  id.,  342),  Peck  V.  Belknap  van    (64    limi,  377),  Boon    v.   City  of 


912  FoiiMs  Rklatino  to 

company  in  said  town  a  just  and  ratable  proportion  of  the 
county  taxes  of  said  county,  which  said  tax  has  been,  in 
each  year,  collected  by  the  collector  of  said  town,  in  the 
same  manner  and  under  the  same  warrant  by  which  other 
taxps  were  collected. 

Plaintiff  further  alleges,  that  in  each  and  every  of  the 
years  last  above  named,  the  amount  of  county  taxes  so  col- 
lected from  the  said  railroad  company,  and  from  the  prop- 
erty thereof  in  the  said  town  of  L.,  has  been  erroneously 
and  illegally  paid  over  by  the  collectors  of  said  town  to  the 
county  treasurer  of  said  county  of  S.,  and  that  the  same 
has  been  paid  out  and  used  by  said  treasurer  for  the  use 
and  benefit  of  said  county,  and  that  such  payment  by  said 
collectors  to  the  county  treasurer  as  aforesaid  was  made, 
and  the  payment  and  use  of  the  said  money  for  the  benefit 
of  said  county  by  the  said  treasurer  as  aforesaid  occurred, 
without  consent  of  said  town,  or  of  any  of  its  officers,  by 
which  it  could  be  legally  represented,  and  that  no  part  of 
the  said  money  so  collected  from  the  proj)erty  of  the  said 
railroad  company  for  county  taxes  has  been  paid  in  an}^ 
year  to  the  commissioners  of  said  town,  as  required  bj'  said 
act  of  1874,  hereinbefore  set  forth  ;  but  that  all  of  the  said 
money  was  paid  to  the  county  treasurer  as  aforesaid,  under 
the  directions  of  the  board  of  supervisors  of  said  county, 
and  the  said  money  was  j)aid  out  and  used  by  the  said 
treasurer  for  the  benefit  of  said  county,  under  the  direc- 
tions of  said  board  of  supervisors. 

Plaintiff"  further  alleges,  that  at  the  annual  meeting  of  the 
board  of  supervisors  of  said  county,  which  convened  on  the 

day  of ,  IS — ,  the  said  town  of  L.,  by  its 

supervisor,  duly  demanded  o2  the  said  board  that  it  should 
levy  and  collect  upon  the  taxable  property  of  said  county, 
and  refund  the  same  to  the  said  town  of  L.,  by  directing 
the  same  to  be  paid  to  the  said  railroad  commissioners  of 
said  town,  the  said  sums  of  money  which  have  been  col- 
lected from  the  property  of  said  railroad  company  in  said 
town  during  the  years  above  stated,  and  which  was  so  erro- 
neously and  illegally  paid  over  to  the  said  county  treasurer 
and  used  for  the  benefit  of  said  county  as  aforesaid,  and 
that  the  said  board  of  supervisors  refused,  and  still  refuses, 

Utica  (5  Misc.,  391),  West  v.  City  of  Squire  v.  Preston  (82  Hun,  88),  Adam- 

Utica  (71  Hun,  540),  N.  Y.  Central  &  eon  v.  Nassau  Electric  R.  Co.  (89  id., 

H.  R.  R.  Co.  V.  Maine   (71  id.,  417),  261.  rev'g  S.  C.  12  Misc.,  600),  Parfitt 

Wilkinsv.  Mayor  (9  Misc.,  610),  Adam-  v.  King-s   Co.   Gas,   etc.,   Co.   (12   id., 

son    V.    Union    R.   Co.    (74    Hun,   3),  278),  Robinson  v.  Gilroy  (10  id.,  205), 

Stearns  v.  Tew  (6  Misc.,  404),  Bell  v.  Terrell  v.  Strong  (14  id.,  258). 
City  of  Rochester  (61  State  Rep.,  721),         ''See  note  2  to  form  No.  122. 


Actions  by  oe  Against  Public  Officers.       913 

to  levj'  the  said  money,  or  to  pay  the  same  to  the  said  town, 
or  to  the  said  commissioners  thereof,  as  requested  by  the 
supervisor  of  the  said  town  as  aforesaid. 

That  the  said  town  has  also,  by  its  supervisor  aforesaid, 
demanded  the  said  money  of  the  county  treasurer  of  said 
county,  but  that  the  said  county  treasurer  refused,  and  still 
refuses,  to  pay  the  same,  or  any  part  thereof,  alleging  that 
he  has  no  money  in  the  treasury  with  which  to  make  such 
payment. 

The  plaintiff  alleges,  upon  information  and  belief,  that 
the  aanount  of  county  taxes  so  collected  upon  the  property 
of  said  railroad  companj^  in  said  tow^n,  and  paid  over  to  the 
county  treasurer  as  aforesaid,  during  the  years  above  stated, 
including  taxes  levied  for  school  purposes  and  for  canals 
under  legislative  enactment,  was,  in  each  year,  as  follows : 

In  18 — , dollars  [stating  each  year  separately]. 

Total, dollars. 

That  the  amounts  of  said  county  taxes  so  collected  from 
said  proper t}^  and  paid  over  in  each  of  said  years,  exclu- 
sive of  taxes  levied  for  schools  and  canals  under  legislative 

enactments,  were  as  follows  :  In  18 — ,  etc., dollars, 

etc.  [stating  each  year  separately].     Total, dollars. 

The  plaintiff  further  alleges,  that  on  account  of  the  said 
money  so  had  and  received  by  the  said  county  of  S.,  and 
which  belongs  to  the  said  town  of  L.  as  aforesaid,  the  said 
county  is  indebted  to  and  liable  to  pay  said  town  the  sum  of 

• dollars,  county  taxes  so  levied  and  collected  upon 

the  property  of  the  said  N.  Y.  and  O.  M.  Railroad  Com- 
pany, in  the  years  aforesaid. 

Wherefore  the  plaintiff  demands  that  the  defendant  ac- 
ooiint  for  the  said  money  so  had  and  received  as  aforesaid, 
and  that  the  phiintiff  have  judgment  for  the  amount  thereof, 
which  is  claimed  at  the  said  amount  of dollars  [in- 
serting amount  first  mentioned],  together  with  the  interest 
thereon,  and  for  sucli  othei'  judgment  decree  or  relief  as 
may  be  just  and  equitable,  and  for  costs  of  this  action.' 

F.  B.,  Plaintiff's  Attorney, 
[Office  address.'! 

[Verification  as  in  forms  Nos.  151,  etc. J 
115 


914 


FoKMS  Kklatino  to 


^^o.  102o. 

Proceeding  to  Substitute  Successor  in  Oilice  on  Death  of 
Party  Sued  in  Official  Capacity. 

(Code  Civ,  Pro.,  i^  1930.) 

See  note  1  to  form  No.  1024. 


Article  Third. 

FORMS  RELATING  TO  ACTIONS  AND  RIGHTS  OF  ACTIONS 
AGAINST  AND  BETWEEN  JOINT-DEBTORS. 

(Code  Civ.  Pro.,  Ch.  15,  Tit.  5,  Art.  3.) 

No.  1026.     Judgment  for  money  against  defendants  jointly  indebted,  where 
all  are  not  served. 

1027.  Indorsement  upon  execution  issued  on  judgment  for  money  against 

joint-debtors,  where  all  have  not  been  served. 

1028.  Complaint  in  action  to  charge  defendant  not  personally  summoned 

1029.  Judgment  in  action  to  cliarge  defendant  not  personally  summoned. 

1030.  Release  to  joint-debtor  compounding  separately  with  creditor. 

1031.  Release  to  partner  compounding  separately  with  creditor. 

1032.  Statement  by  persons  composing  joint-stock  association  of  mem- 

bers thereof. 

1033.  Complaint  against  partner  not  sued. 

1034.  Order  in  partnership  action  under  section  1947,  Code  of  Civil  Pro 

cedure 

1035.  Undertaking  in  partnership  action  on  application  of  members  of 

firm  to  continue  the  business  pending  the  action. 


^  This  form  of  complaint  is  from  the 
case  of  Biidges  v.  Supervisors,  etc. 
(92  N.  Y.,  570). 

It  was  held  in  Manchester  v.  Her- 
rington  (10  N.  Y.,  164),  that  under  2 
R.  S.,  474,  section  100,  upon  the  expi- 
ration of  the  term  of  office  of  a  public 
officer,  pending  a  suit  in  his  name,  it 
is  optional  with  the  parties  authorized 
to  apply  for  a  substitution  whether 
they  will  make  such  application  or 
not ;  and  that  until  the  successor  in 
office  or  the  adverse  party  applies  for 
a  substitution  the  suit  shall  proceed  in 
the  names  of  the  original  parties. 

The  same  rule  is  held  to  apply  under 
section  1930  of  Code  Civ.  Pro.,  in 
Famham  v.  Benedict  (29  Hun,  44). 

See,  also,  Hitchman  v.  Baxter  (5 
Civ.  Pro.  Rep.,  226).  People  ex  rel. 
Lardner  v.  Carson  (78  Hun,  544),  Bel- 
linger V.  Birge  (54  Hun,  511). 


See  further,  as  to  action  by  town 
officer,  Hagadorn  v.  Raux  (72  N.  Y., 
583);  Victory  v.  Blood  (25  Hun,  515), 
Chrigstrom  v.  McGregor  (74  Hun, 
343). 

In  an  action  brought  pursuant  to  sec- 
tions 1926,  1927  of  Code  Civ.  Pro.,  the 
officer  by  or  against  whom  it  is  brought 
must  be  described  in  the  summons,  or 
other  process  by  which  it  is  com- 
menced, and  in  the  subsequent  pro- 
ceedings therein  by  his  individual 
name,  with  the  addition  of  his  official 
title.     (Code  Civ.  Pro.,  §  1929.) 

An  objection,  growing  out  of  an 
omission  to  join  any  officer  who  ought 
to  be  joined  with  the  others,  must  be 
taken  by  the  answer,  or  in  a  special 
proceeding,  before  the  close  of  the- 
case  on  the  part  of  the  defendant, 
otherwise  it  is  waived.     (Id.) 

"  See  note  2  to  form  No.  122. 


AcTioj!iS  Against,  etc.,  Joint-Debtors.  915 

No.  1026. 

Judgment  for  Koney  against  Defendants  Jointly  Indebted, 
where  all  are  not  Served. 

(Code  Civ.  Pro.,  §  1932.) 

As  in  general  forms  Nos.  457,  462,  against  all  tlie  defend- 
ants," adding  as  follows : 

[This  judgment,  however,  may  be  enforced  only  against 
the  joint  person;ii  property  of  said  defendants,  G.  W.  F. 
and  F.  W.  F.,  and  the  separate  real  and  personal  property 
of  the  defendant,  G.  W.  F.-] 


No.  1027. 

Indorsement  upon  Execution  Issued  on  Judgment  for 
Money  against  Joint-Debtors,  where  all  have  not  been 
Served. 

(Code  Civ.  Pro.,  §§  1934,  1935.) 

As  in  form  No.  560,  adding  at  end  thereof  as  follows : 
The  defendants,  A.  B.  [and  C.  D.]  was  [or  were]  not  sum- 
moned, and  the  within  execution  is  not  to  be  levied  upon 
the  sole  property  of  said  A.  B.  [and  C.  D.],  but  it  may  be 
collected  out  of  personal  property  owned  by  said  A.  B.  [or 
C.  I)]  jointly  with  the  other  defendants,  E.  F.  and  G.  H.,  or 
with  [either]  of  them,  and  out  of  the  real  and  personal 
property  of  said  E.  F.  and  G.  H.,  or  of  [either]  of  them. 
[Signature,  etc.,  as  in  form  No.  560.] 

•  See  Produce  Bank  v.  Morton  (67  judgment  is  afterwards  docketed.  The 
N.  Y.,  199),  Orleans  C^.  Nat.  Bank  v.  judgment  does  not,  by  virtue  of  its  be- 
Spencer  (19  Ilun,  5B9),  ,Judd  Linseed,  ing  docketed,  bind  any  real  property, 
etc.,  Co.  V.  liubbell  (7(5  N.  Y.,  543),  or  chattel  real,  owned  by  such  a  de- 
Decker  V.  Kitchen  (26  ilun,  173),  Orr  fendant.  But  this  section  does  not 
V.  McEwen  (16  Hun,  625;  6  Civ.  Pro.,  affect  the  plaintiff's  right  of  action  to 
38),  Staples  v.  Gokey  (20  Week.  Dig.,  charge  the  judgment  upon  any  real 
564).  property.     (Cod(!  Civ.  Pro.,  g  1936.) 

The  clerk  with  whom  the  judgment  «  The  clause  in  i-rackets  may  proba- 

rollis  filed  must  write  upon  the  docket,  bly  l)e  omitted  under  section  1932  of 

opposite  or  under  the  name  of  each  Code  Civ.  Pro. 

defendant,  upon  whom  the  Kumim)ns  See  as  to  its  neces-sity  under  section 

was  not  served,  the  words  "not  sum-  1'^6  of  Code  of  Pro.,  the  head-note  to 

moned,"  and  a  like  entry  must  be  made  Nortlieni  Bank  of  Kentucky  v.  Wrigiit 

by  each  county  cleik  with  whom  the  (.')  Robt.,  604.) 

Sue,  ul80,  Yerken  v.  McKjuUlen  (141 
N.  v.,  136. 


916  Forms  Relatixg  to 

No.  1028. 

Complaint  iu  Action  to  Charge  Defendant  not  Personally 

Summoned. 

(Code  Civ.  Pro.,  g  1937.) 

[Title  of  cause.] 

The  complaint  of  the  above  named  plaintiff  respectfully 
shows : 

First.  That  heretofore,  to  wit :  on  the  day  of 

,  18 — ,  in  an  action  then  pending  in  [this  court], 

wherein  M.  E.  D.  was  plaintiff  and  E.  A.  R.,  J.  P.  R.  and 
E.  R.  were  defendants,  it  was  adjudged  and  decreed  by  the 
consideration  and  determination  of  said  court,  that  the  said 
defendants  in  said  action  should  pay  to  the  plaintiff  in  said 
action,  and  the  plaintiff  in  said  action  should  receive  of  and 
from  said  defendants  in  said  action  the  sum  of dol- 
lars, as  by  the  judgment  in  said  action,  and  the  roll  thereof 
on  hie  in  the  office  of  the  clerk  of  said  court,  when  produced 
as  this  court  shall  direct,  will  more  fully  and  at  large  appear. 

That  thereafter,  heretofore,  to  wit :  on  the day 

of ,  18—,  said  defendant,  F.  W.  T.,  and  one  G.  W.  T., 

entered  into  a  certain  undertaking  in  said  action  bearing 
date  on  that  day,  in  the  w^ords  and  figures  following,  that 
is  to  say  [here  is  inserted  copy  undertaking]. 

That  the  said  undertaking  was  duly  acknowledged  by  the 
said  G.  W.  T.  and  the  defendant  in  this  action,  and  filed  in 

the  oflace  of  the  clerk  of  the Court,  and  a  copy 

thereof  served  on  the  attorney  for  the  plaintiff  in  said 
action. 

That  thereafter,  heretofore,  to  wit :   on  the day 

of ,  18—,  upon  an  appeal  had  and  taken  by  the  said 

defendants  in  said  action  from  the  aforesaid  judgment  to 
the  General  Term  of  this  court,  in  which  the  undertaking 
last  set  forth  was  given  and  filed,  it  was  by  the  considera- 
tion and  determination  of  said  General  Term  adjudged  and 
decreed  that  the  judgment  so  as  aforesaid  appealed  from 
should  stand  in  all  things  affirmed,  and  that  the  said  plain- 
tiff should  recover  of  and  from  said  defendants   in  said 

action  the  sum  of dollars,  as  by  the  judgment  of 

said  General  Term  of  said  court,  and  the  roll  thereof,  when 


Actions  Against,  etc.,  Joint-Debtors.  917 

produced  as  this  court  shall  direct,  will  more  fully  and  at 
large  appear. 

That   thereafter  and  on  or  about   the  day  of 

,  18 — ,  notice  of  the  entry  of  such  judgment  of  the 

General  Term  was  dulj^  served  on  the  adverse  party.' 

That  the  said  defendants  have  not  paid  the  costs  and 
damages  awarded  against  them  on  said  apiDeal,  or  the 
amount  directed  to  be  paid  by  the  said  judgment. 

Second.  [Here  is  set  forth  the  undertaking  given  on  ap- 
peal to  the  Court  of  Ax)peals  by  the  same  sureties,  its 
acknowledgment  and  filing,  and  the  justification  of  the 
sureties,  and  the  service  of  a  copy  thereof  on  the  attorney 
for  the  plaintiff,  and  the  complaint  continues  as  follows.] 

That  thereafter,  heretofore,  to  wit :    on  the day 

of ,  18 — ,  upon  an  appeal  had  and  taken  by  the 

said  defendants  in  said  action  from  the  aforesaid  judgment 

of  the  General  Term  of  the Court  to  the  Court  of 

Appeals  of  the  State  of  New  York,  in  which  appeal  the 
above  undertaking  was  given  and  filed,  it  was  b}'  the  con- 
sideration and  determination  of  said  Court  of  Appeals 
adjudged  and  decreed  that  the  judgment  so  as  aforesaid 
appealed  from  should  stand  in  all  things  affirmed,  so  far  as 
the  same  related  to  the  defendant,  E.  A.  R.,  and  that  the 
plaintiff  in  said  action  should  recover  of  and  from  said 
defendant,  E.  A.  R.,  in  said  action,  her  costs  and  disburse- 
ments on  such  appeal  to  be  taxed  as  by  the  remittitur  from 
said  court  to  this  court,  when  produced  as  this  court  shall 
direct,  will  more  fully  and  at  large  apjoear. 

That  thereafter  said  remittitur  was  filed  in  the  office  of 

the  clerk  of  the Court,  and  judgment  thereon  and 

for  the  costs   of   said   appeal,   amounting   to  the  sum  of 

dollars,  was  duly  entered  in  favor  of  said  M.  E.  D., 

as  of  the day  of ,  18 — ,  in  the  office  of  the 

clerk  of  said Court. 

[Then  is  alleged  assignments  of  the  judgments  to  the 
plaintiff,  and  the  complaint  continues  as  follows.] 

Tliat  no  part  of  said  moneys  has  ever  been  paid,  and  there 
is  now  due  and  owing  to  this  i)laintiff,  by  reason  of  the 
premises,   the   sum   of dollars   and    tlie   interest 

'  See  note  3  to  form  No.  9b9,  p.  881. 


918  Forms  Relating  to 

thereon  from,  etc.,  and  the  further  sum  of dollars 

and  the  interest  thereon  from,  etc. 

And  the  plaintiff  further  shows  : 

That  an  action  was  commenced  in  the Court  in 

favor  of  this  plaintiff  about  the day  of , 

1^< — ,  the  comj^laint  in  which  action  set  forth  the  facts  here- 
inbefore contained,  and  asked  judgment  for  the  amount  of 
said  several  judgments. 

That  said  G.  W.  T.  and  F.  W.  T.  were  named  as  defend- 
ants therein  ;  that  the  summons  therein  was  served  upon 
said  G.  W.  T.,  but  wa«  not  served  upon  said  F.  W.  T  ,  tliat 
the  judgment  demanded  in  that  action  was  for  a  sum  of 
money  upon  an  indebtedness  upon  contract  in  which  said 
defendant,  F.  W.  T.,  and  said  G.  W.  T.,  were  jointly  in- 
debted, and  that  only  the  defendant,  G.  W.  T.  was  sum- 
moned, and  that  in  said  action  judgment  was  duly  entered 
in  this  plaintiff's  favor  in  the  office  of  the  clerk  of  this 

court,  on  the  lOtli  day  of  May,  1880,  for  the  sum  of • 

dollars  damages  and dollars  costs,  making  in  all 

the  sum  of dollars,  and  that  the  said  judgment  has 

not,  nor  has  any  part  thereof,  been  paid,  and  at  the  date  of 

this  verification,'  to  wit,  the day  of ,  18 — , 

there  is  due  upon  the  said  judgment  the  sum  of 

dollars  and  the  interest  thereon  from,  etc.,  to  wit,  the  sum 
of dollars. 

Wherefore  the  plaintiff  demands  judgment  establishing 
the  liability  of  the  defendant,  F.  W.  T.,  to  pay  the  sum  of 

dollars,  being   the  amount  of  the  last  aforesaid 

judgment  entered  in  said  action  in  the Court  in 

favor  of  this  plaintiff,  on  the  10th  day  of  May,  1880,  for  the 

sum  of dollars,  with  interest  thereon  from  the  said 

day  of ,  18 — ,  and  charging  the  property 

'The  complaint  in  such  an  action  misrht  have  made  in  the  original  action, 
must  be  verified;  must  contain  an  alle-  if  the  summons  therein  had  Ijeen  served 
gation  that  the  judgment  has  not  been  upon  him,  when  it  was  first  served  up- 
paid;  and  must  state  the  sum  remain-  on  a  defendant  jointly  indebted  with 
ing  impaid  thereupon,  at  the  time  of  him,  objections  to  the  judgment,  and 
the  verification.  (Code  Civ.  Pro.,  g  defenses  or  counterclaims  which  have 
1938.)  arisen  since  it  was  rendered.      (Code 

The  defendant's  answer  is  restricted  Civ.  Pro.",  §  1939.) 
to  defenses  or  counterclaims  which  he 


Actions  Agaiistst,  etc.,  Joixt-Debtoes.          919 
of  said  defendant  with  the  payment  of  said  sum  of 


dollars  and  interest,  together  with  the  costs  of  this  action.* 

F.  M.,  Plaintiff '  s  Attorney. 
[Office  address."] 
[Verification  as  in  forms  Nos.  151,  etc.] 


IS^o.  1029. 

Judgment  in  Action  to  Charge  Defendants  not  Personally 

Summoned. 

(Code  Civ.  Pro.,  §  1941.) 

As  in  form  No.  457  to  [^],  or  as  in  form  No.  462  to  and 
including  the  word  "  adjudged,"  and  from  thence  as  follows : 
That  the  plaintiff,  A.  B.,  recover  from  and  against  the  de- 
fendant, C.  D.,  the  sum  of dollars  and 

cents,  which  is  hereby  determined  to  be  the  amount  remain- 
ing unpaid  upon  the  judgment  originally  rendered  on  the 

day  of ,  18 — ,  against  G.  W.  T.  and  said 

defendant,  in  the Court,  and  that  said  plaintiff 

also  recover  from  and  against  said  defendant dol- 
lars and cents  for  his  costs  of  this  action,  amount- 
ing in  all  to  the  sum  of dollars  and cents. 

J.  L.,  Clerk. 

No.  1030. 

Release   to  Joint-Dehtor  Compounding    Separately  with 

Creditor. 

(Code  Civ.  Pro.,  §  1942) 

Whereas,  A.  B.  and  C.  D.  are  jointly  indebted  to  the 
undersigned,  E.  F.,  upon,  [*]  [describe  claim] ;  and,  whereas, 
the  said  A.  B.  lias  made  a  separate  composition  and  set- 
tlement with  the  said  E.  F.  of  his  liability  ujion  said 
[claim] :  [f] 

Now.  therefore,  in  consideration  of  the  sum  of 

dollars,  to  me  in  hand  paid  by  said  A.  B.,  in  full,  of  the 
amount  agreed  to  be  paid  by  said  A.  B.  upon  said  settle- 

•This    complaint    is     substantially  v.  Stafford  (103  N.  Y.,  274),  Hurbeck. 

from  the  caae  of  Morey  v.  Tracey  ('.»J  v.  Pupiri  (65  Hun,  335,  ailVl  123  N.V., 

N.  Y.,  581).     See,  siJKd,  Oneida  County  ll.'<),  ibick.«miin  v.  Younj,'  (i<l.,   406), 

Bank    v.    Bonney    (lul    N,    Y.,    173),  banie    v.    Same    (134     N.     V.,     170), 

Ulica   Clothes   Dryer    Maiiuf.    Co.    v.  National   Broadway    Bunk    v.    Hitch 

Otis    (37    Hun,    301),    Kaiitiowitz    v.  (29    Abb.    N.    C,    400),    O'llanh.ii    v. 

Kulla   (20   Al<b.  N.  C,  321),  Ri<:hard-  bi'ott  (S'J  Hun,  44).  as  to  this  action. 
8on    V.    Case    (3    Civ.    Pro.    R.,   2'.t;')),         'Sue  note  2  to  form  No.  122. 
Decker  v.  Kitchen  (20  Hun,  173),  Lonjc 


920  FOKMS    RELATINCi    TO 

ment,  I  do  hereby,  pursuant  to  section  1942  of  the  Code  of 
Civil  Procedure,'  release  and  discharge  the  said  A.  B.  from 
all  and  every  liability  to  me  upon  said  [claim] ;  and  the 
said  A.  B.  is  hereby  exonerated  therefrom. 

This  instrument  is  not,  in  any  way,  to  affect  the  liability 
of  said  C.  D.,  to  me,  upon  said  [claim]. 

In  witness  u  hereof,  I  have  hereunto  set  my  hand  and 

seal,  this day  of ,  18 — . 

E.  F.     [L.  s.] 

Sealed  and  delivered  in  presence  of  G.  H. 

[Acknowledgment  as  in  form  No.  340,  or  proof  as  in  form 
No.  538.] 

No.  1031. 
Kelease  to  Partner  Compounding  Separately  with  Creditor. 

(Code  Civ.  Pro.,  §  1942.) 

As  in  form  No.  1030  to  [*],  and  from  thence  as  follows : 
A  partnership  indebtedness  of  the  late  firm  of  A.  B.  and 
C.  D.,  which  firm  has  now  been  dissolved  by  consent  [or 
state  how  otherwise]  for  [describe  claim] ;  and,  whereas, 
the  said  A.  B.  has  made  a  separate  composition  and  set- 
tlement with  the  said  E.  F.  of  his  said  liability  upon  said 
[claim]  : 

Now,  therefore,  etc.  [as  in  form  No  1030  from  (f)  to  end 
thereof,  inserting  therein  after  word  "therefrom,"  as  fol- 
lows], and  from  all  liability  thereupon  incurred  by  reason 
of  his  connection  with  the  said  iDartnershij)].' 


No.  1032. 

Statement  by  Persons  Composing  Joint-Stock  Association 
of  Members  thereof. 

(Code  Civ.  Pro.,  §  1945.) 

We,  the  undersigned,  do  hereby  state  and  certify,  pur- 

'See  Bank  of  Poughkeepsie  v.  lb-  Stuckey  (32  State  Rep.,  876),  Harbeck 

botson  (5  Hill,  461),  Hoflman  v.  Dan-  v.  Pupin  (123  N.  Y.,  115,  alfj^  S.  C, 

lop  (1  iiarb.,  185),  Cornell  v.  Masten  55  Hun,  335),  Commercial  Nat.  Bank 

(35  id.,  157),  Morgan  v.  t-mith  (70  N.  v.  Taylor  (64  Hun,  49U). 

Y.,  537),  Benedict  v.   Rea   (21  Week.  As  to  efl'ect  of  release  to  dischar^'e 

Dig.,  73),  Abbott  v.  Royce  (20  State  the  docket  of  a  judgment,   etc.,   see 

Rep.,    694),    Hood    v.    Havward    (48  Code  Civ.  Pro.,  §  1943. 

Hun,  330),  Marx  V.  Jones  (3*6  id.,  290);  ^See  notes  to  last  form  No.  1030, 

23  Abb.  N.  C,  194,  Twte,    Newman  v.  and  see  Stitt  v.  Cass  (4  Barb.,  92), 


AcTioiJ^s  Agaii^^st,  etc.,  Joint-Debtoes.  921 

suant  to  section  1945  of  the  Code  of  Civil  Procedure,  that 
the  names  of  all  the  persons  now  composing  the  [name  of 
association  or  firm],  an  association  [or  a  firm]  engaged  in  the 
periodical  transportation  of  passengers  [o?'  j)ropertyj  in  the 
counties  of  [naming  them],  in  the  State  of  New  York,  are  as 
follows:  A.  B.,  C.  D.,  etc. 
In  witness  whereof,  we  have  hereunto  set  our  hands  at 

the of J  this day  of ,  18 — .' 

[Signatures  of  members.] 


IS'o.  1033. 
Complaiut  against  Partner  not  Sued. 

(Code  Civ.  Pro.,  §  1946.) 

[Title  of  cause.] 

The  complaint  of  the  above  named  plaintiff  respectfully 

shows,  that  heretofore  and  on  or  about  the day  of 

,  18 — ,  an  action  was  commenced  in  the 

Court,  by  the  above  named  plaintiff,  against  A.  B.  and  C. 
D.,  defendants,  upon  the  cause  of  action  hereinafter  set 
forth. 

That  G.  H.,  the  above  named  defendant,  who  was  a  mem- 
ber of  the  firm  of  A.  B.  &  Co.,  and  as  such  should  have 
been  made  a  party  defendant  in  said  action  was  not  joined 
as  a  defendant  therein. 

That  final  judgment  was,  on  the day  of , 

18 — ,  taken  against  the  said  A.  B.  and  C.  D.,  the  defend- 
ants in  said  action,  for  the  sum  of dollars  and 

■ cents,  damages  and  costs,  the  judgment  roll  where- 
upon was  filed  in county  clerk's  office  on  the  day 

last  aforesaid. 

That  said  judgment  still  remains  wholly  unsatisfied  [or 

that  the  sum  of dollars,  with  interest,  etc.,  still 

remains  due  and  unpaid  upon  said  judgment]. 

And  the  said  plaintiff  further  shows,  that,  etc.  [here  set 
forth  the  cause  of  action]. 

'The  statement  ia  conclusive  for  the  statement  showing  a  chan^fe  of  inter- 
purposes  specified  in  section  1945,  as  est.  (Code  Civ.  Pro.,  §  r.t45.)  See 
against  the  parties  filing  it,  until  thirty  also  note  1,  page  907,  to  form  No. 
days  after  filing,  in  like  manner  a  new  1022. 

in; 


922  Forms  RELATi^a  to 

Wherefore  the  plaintiff  prays  judgment  against  the  said 
defendant,  G.  H.,  for,  etc.].' 

[Signature,  etc.,  as  in  form  No.  969.] 
[Verification  as  in  forms  Nos.  151,  etc.] 


No.  1034. 

Order  in  Partnersliip  Action  iiniler  Section  1947,  Code  of 
Civil  Procedure. 

(Code  Civ  Pro..  §  1947.) 

[At,  etc.,  as  in  form  No.  80. J 
[Title  of  cause.] 

On  reading  and  filing  the  aflidavit  of  A.  B.,  dated , 

18 — ,  by  which  it  appears  that  this  action  is  brought  [state 
purpose  of  action],  and  on  reading  and  filing  notice  of  this 
motion,  with  proof  of  due  service  thereof  and  of  a  copy  of 
said  affidavit  upon  [name  parties  served],  and  on  reading 
and  filing  [name  any  opposing  affidavits'!,  and  on  motion  of 
I.  J.,  counsel  for ,  after  hearing  K.  L.,  for : 

It  is  hereby  ordered,  that  the  partnership  business  of  the 
firm  of  H.  &  Co.  may  be  continued  during  the  pendency  of 
this  action  by  [name  the  j)artners  authorized],  upon  their 

executing  and  filing  with  the  c)erk  of county  an 

undertaking  in  the  form  required  by  law,  in  the  sum  of 

dollars,  with  [two]  sufficient  sureties,  to  be  ajj- 

proved  as  required  by  law,  to  the  effect  that  they  will  obey 
all  orders  of  tlie  court  in  the  above  entitled  action,  and 
will  perform  all  things  which  the  judgment  therein  requires 
them  to  perform  [add  any  further  conditions  imposed  by 
the  court].  

No.  1035. 

Undertaking  in  Partnership  Action  on  Application  of 
Members  of  Firm  to  Continue  the  Business  Pending 
the  Action. 

(Code  Civ.  Pro.,  §  1947.) 

[Title  of  cause.] 

Whereas,  the  above  entitled  action  has  been  brought  to 

'  bee  Decker  v.  Kitchen  (26  Hun,  173). 


Actions  Against,  etc.,  Joint-Debtors.  923 

dissolve  the  partnership  heretofore  existing  between  the 
plaintiffs  and  defendants  under  the  firm  name  of  H.  &  Co. 
[or  state  other  purpose  of  the  action  under  §  1947,  Code 
Civ.  Pro.]. 

And  whereas  [names  of  partners  applying],  have  applied 
for  and  obtained  an  order  authorizing  the  partnership  busi- 
ness of  said  partnership  to  be  continued  during  the  pend- 
ency of  said  action  by  them  uj)on  filing  an  undertaking  as 
l^rescribed  by  section  1947  of  the  Code  of  Civil  Procedure, 
with  sureties,  and  in  the  amount  and  ux)on  the  conditions 
hereinafter  contained. 

Now,  therefore,  we,  E.  F.,  of ,  by  occupation  a 

,  and  G.  H.,  of ,  by  occupation  a , 

do  hereb}'  jointly  and  severally  undertake,  pursuant  to  said 

section  and  to  said  order,  in  the  sum  of dollars,' 

that  the  said  [partners  applying]  will  obey  all  orders  of  the 
Court  in  the  above  entitled  action,  and  will  per- 
form all  things  which  the  judgment  therein  requires  them 
to  perfoiTn  [add  any  further  conditions  imposed  by  the 
court]. 

Dated ,  18—. 

E.  F. 

G.  H. 

Sealed  and  delivered  in  presence  of . 

[Acknowledgment  or  proof,  justification  and  approval  as 
in  forms  Nos.  340,  538.] 

'  The  amount  and  the  sureties  to  be  such  as  the  order  prescribes. 


984  Forms  Relating  to 


CHAPTER  XVI. 

FORMS  RELATING  TO  ACTIONS  IN  BEHALF  OF  THE  PEOPLE, 
AND  SPECIAL  PROCEEDINGS  INSTITUTED  IN  THEIR  BE- 
HALF BY  STATE  WRIT. 

TITLE     I.     Forms  relating  to  actions  in  behalf  of  the  people. 

TITLE  II.     Forms  relating  to  special  proceedings  instituted  by  state  writ. 

TITLE  I. 
Article  First. 

forms  relating  to  action  against  the  usurper  of  an 
office  or  franchise. 

(Code  Civ.  Pro.,  Ch.  16,  Tit.  1,  Art.  1.) 

No.  1036.     Complaint  in  action  against  person  usurping,  etc.,  public  office. 

1037.  Complaint  against  persons  acting  as  a  corporation  without  being 

duly  incorporated,  etc. 

1038.  Affidavit  to  obtain  order  for  delivery  of  books  and  papers. 

1039.  Order  to  show  cause  upon  affidavit.  No.  1038. 

1040.  Affidavit  of  defendant  to  prevent  issuing  of  warrant. 

1041.  Order  discharging  defendant  upon  return  of  order  to  show  cause. 

1042.  Warrant  on  failure  to  make  afR;lavit,  etc. 

1042a.   Search  warrant  for  such  books  and  papers  withheld. 

1043.  Complaint  in  action  for  damages,  after  final  judgment  in  action 

against  person  usurping,  etc. ,  public  office. 

1044.  Final  judgment  in  action  against  persons  acting  as  a  corporation 

without  being  duly  incorporated. 

1045.  Final  judgment  in  action  for  usurping,  etc.,  office. 


No.  1036. 

Complaint  in  Action  against  Person  Usurping,  etc.,  Public 

Office. 

(Code  Civ.  Pro.,  §  1948,  subd.  1.) 

SUPREME  COURT— County  of  Albany. 


The   People   of   the   State   of   New 

York  upon  the  relation  of  J.  3, 

agst. 

M.  N.  N. 


The  above  named  plaintiffs,  by  L.  W.  R.,  attorney-general 


Actions  in  Behalf  of  the  People.  925 

of  the  State  of  New  York,  complain  of  the  above  named 
defendant,  and  allege  as  follows  : 

First.  That  during  the  times  hereinafter  mentioned,  the 
city  of  Albany  was,  and  has  ever  since  continued  to  be,  and 
still  is,  a  corporation  and  body  corporate,  by  the  name  of 
the  city  of  Albany,  and  duly  incorporated  by  law. 

Second.  That  in  and  by  the  act  of  the  legislature,  incor- 
porating said  city,  and  the  acts  amendatory  thereof,  sev- 
eral offices  are  created  and  methods  and  means  of  filling 
the  same  are  provided  ;  and  among  such  offices  is  that  of 
mayor  of  said  city,  and  his  election  by  the  legal  voters  of  said 
city  is  therein  provided  for  ;  that  under  and  by  virtue  of  the 
provisions  of  said  acts,  an  election  for  the  office  of  ma}  or, 
among  other  offices  of  said  corporation,  was  held  in  the  city 
of  Albany  on  the  second  Tuesday  of  April,  1882,  and  such 
election  was  then  held  for  tlie  purpose  of  electing  some  per- 
son to  fill  the  office  of  mayor  of  said  city  for  two  years  from 
the  first  Tuesday  of  May,  1882,  that  being  the  time  Avhen 
the  term  of  office  of  the  then  Mayor  would  expire  and  the 
time  when  the  term  of  office  of  the  person  elected  at  said 
election  would  commence,  and  which  office  such  person  so 
elected  would  have  a  right  to  hold  during  the  term  for 
which  he  was  elected,  viz.:  for  two  years  from  the  first 
Tuesday  in  May,  1882. 

Third.  And  that  at  said  election,  as  aforesaid,  held  in 
said  city,  the  above  named  J.  S.  was,  as  the  plaintiffs  allege 
upon  information  and  belief,  by  the  greatest  number  of  legal 
votes  cast  at  such  election,  duly  and  legally  elected  mayor 
of  said  city  of  Albany  for  the  term  of  two  years,  to  com- 
mence on  the  first  Tuesday  of  May,  1882,  and  this  action  is 
brought  upon  the  relation  of  the  said  J.  S. 

Fourth.  That  notwithstanding  the  election  of  the  said 
J.  S.  to  said  office  by  the  greatest  number  of  legal  votes 
cast  at  said  election,  the  defendant,  M.  N.  N.,  as  plaintiffs 
allege  on  their  information  and  ))elief,  usurped  and  intruded 
into  and  now  unlawfully  holds  and  exercises  within  said 
city  the  office  of  mayor  of  said  city  of  Al])any,  and  unlaw- 
fully (claims  and  assumes  to  be  the  mayor  of  said  city,  aud 
to  have  the  right  to  exercise  the  duties  of  the  office  for  the 
term  of  two  years  from  the  first  Tuesday  of  May,  1882. 


926  Forms  Relating  to 

Fifth.  Wherefore  the  plaintiffs  demand  that  judgment 
be  rendered  herein  upon  the  rights  of  the  said  J.  S.  to  hold 
the  said  office,  and  also  upon  the  pretended  rights  of  the 
defendant  thereto,  and  that  it  be  adjudged  that  the  defend- 
ant has  no  just  or  legal  right  to  hold,  occupy  or  exercise  the 
said  office  of  mayor  of  said  city,  and  lias  had  no  such  right 
since  the  first  Tuesday  of  May,  1882,  and  that  the  said  J.  S. 
has  the  legal  and  just  right  to  hold  the  said  office  for  the 
term  of  two  years  from  the  first  Tuesday  of  May,  1882,  and 
that  the  jilaintiffs  may  recover  of  the  defendant  the  costs 
of  this  action,  and  that  the  defendant  be  ousted  and  ex- 
cluded from  said  oflSce,  and  be  adjudged  to  pay  to  the  plain- 
tiffs a  fine  of  two  thousand  dollars.' 

L.  W.  R.,  Attorney-General^ 

Attorney  for  Plaintiffs. 
[Office  address.*] 

City  and  County  of  Albany,  ss.  : 

J,  S.,  being  duly  sworn,  says,  that  he  is  the  relator  above 
named  ;  that  he  is  acquainted  with  the  facts  stated  in  the 

*  A  person  claiming   to   hold  a  mu-  See   further,  as   to   cases  in  which 

nicipal   office   cannot  maintain  an  ac-  this  action  may  be  brought,  and  as  to 

tion  in  his  own  name  to  detei-mine  his  proceedings  therein,  People  v.  Flana- 

right   thereto,  where   it   does  not  ap-  gan  (66  N.  Y.,  237;  aff 'g  S.  C,  5  Hun, 

pear  that  any  person  claims  the  office  187),  People  v.  Common  Council  (77 

m  hostility  to  him,  or   that   there  has  N.  Y.,  508),  People  v.  Ferris  (76  id., 

been  any  interference   by  the  defend-  826),  People  v.  Thornton  (25  Hun,  456), 

ant  with   his    legal   rights   as  officer.  People  v.  McCausland  (54  How.  Pr., 

(Demarest  V.  Wickham,  63  N.Y.,320;  151),    People    ex   rel.    Swinburne    v. 

aflF'g  S.  C,  4  Hun,  627.)  Nolan  (30  Hun,  484,  S.  C,  32  id.,  612 ; 

The  provision   of  section  428  of  the  65  How.  Pr.,  468),  People  v.  Kenney 

Code  of  Procedure   (§  1983,  Code  Civ.  (92  N.  Y.,  647;  96  N.  Y.,  294),  People 

Pro.),  abolishing  the  writ  of  Q'«o  ■war-  v.  W hillock   (92   id.,  191),    People   v. 

ranto,  and    proceedings   by   informa-  Perley  (80  id.,  624),  Peoi)le  v.  Wilson 

tion   in  the  nature  thereof,  have  only  (62  id.,  186),  People  ex  rel.  Cornell  v. 

done  away  with  the  form   of  the  pro-  Knox  (38   Hun,  286),  People   ex    rel. 

ceeding.      The    remedies   theretofore  Swinburne  v.  Nolan  (101  N.  Y.,  530, 

had   in   theae    forms  may  now  be  ob-  aff 'g  S.  C,  32  Hun,  612),  St.  Stephen's 

tained  by  civil  action.     (People  ex  rel.  Church   cases   (25   Abb.   N.  C,  2.')3), 

Hatzel  v.  Hall,  80  N.  Y.,  117.)  People  v.  Piatt  (117  N.  Y.,  159),  Peo- 

The  right  to  bring  an  action   to   try  pie  v.  Broadway  R.  Co.  of  Brooklyn 

the  title  to  a  puVjlic  office  is  vested  in  (56  Hun,  45). 

the  attorney-general,  and  his  decision  In  an  action  under  subdivision  1  of 
as  to  whether  or  not  the  action  shall  section  1948,  Code  Civ.  Pro.,  the  claim- 
be  brought  is  final,  and  a  mandamus  ant  is  a  proper,  if  not  a  necessary, 
cannot  be  brought  to  compel  him  to  party  plaintiff.  (People  v.  De  Bevoise, 
bring  such  an  action.  (People  v.  Fair-  27  Hun,  596.) 

child,    67  N.  Y.,   334;  aflF'g  S.  C,  8  See,  also,  note  1  to  form  No.  496,  as 

Hun,  334.)  to  submission  of  a  controversy  with 


Actions  in  Behalf  of  the  People.  927 

foregoing  complaint ;  tliat  the  grounds  of  his  belief,  as  to 
the  matters  therein  stated  on  information  and  belief,  are  the 
sworn  evidence  of  electors  residing  in  said  city  who  voted 
at  the  election  named  in  said  comjplaint,  and  the  returns  of 
said  election  and  information  that  deponent  has  received 
from  persons  having  knowledge  of  the  facts  of  said  elec- 
tion ;  that  he  has  heard  read  the  foregoing  complaint  and 
knows  the  contents  thereof,  and  that  the  same  is  true  of  his 
own  knowledge,  except  as  to  those  matters  which  are  therein 
stated  to  be  alleged  on  information  and  belief,  and  as  to 

those  matters  he  believes  it  to  be  true. 

J.  S. 
[Jurat  as  in  form  No.  46.] 


No.  1037. 

Complaint  against  Persons  Acting  as  a  Corporation  with- 
out being  duly  Incorporated,  etc. 

(Code  Civ.  Pro.,  §  1948,  subd.  3.) 

[Title  of  cause.] 

The  people  of  the  State  of  New  York  by  L.  W.  R.,  their 
attorney-general,  complain  of  the  defendant  above  named 
and  allege,  upon  information  and  belief  : 

That  heretofore,  to-wit :  on  or  about  the day  of 

out  action,  involving  the  right  to  a  of  bis  usurpation  or  intrusion,  has  re- 
public office.  ceived  any  fees  or  emoluments  belong- 
By  chapter  399,  Laws  of  1884,  sec-  ing  to  the  office,  an  order  to  arrest  the 
tion  1953  of  Code  of  Civ.  Pro.,  was  defendant  may  be  granted  by  the  court 
amended  in  relition  to  recovery  of  or  a  judge.  The  provisions  of  title 
damages  in  action  of  quo  warranto,  by  first  of  chapter  seventh  of  Code  Civ. 
substituting  a  new  action  for  the  pur-  Pro. ,  apply  to  such  an  order,  and  the 
pose  of  such  recovery,  instead  of  re-  proceedings  thereupon  and  subscciuent 
quiring  them  to  be  claimed  in  the  same  thereto,  except  Avliere  special  provision 
action.  is  otherwise  made  in  title  1  of  chapter 
It  is  provided  by  Code  Civ.  Pro.,  10  of  that  act.  For  that  purpose  the 
section  1949,  that  the  attorney-general,  order  is  deemed  to  have  been  made,  as 
besides  stating  the  cause  of  action  in  prescribed  in-  section  549  of  Code  Civ, 
the  complaint,  may,  in  his  discretion.  Pro.  (See  forms  Nos.  178,  etc.) 
set  forth  therein  the  name  of  the  per-  The  ndc  that  a  temporary  injnnrtion 
son  rightfully  entitled  to  the  office;  will  not  Ix- granted  pending  an  aclioii 
and  thereupon,  and  upon  proof  ])y  to  try  the  title  to  an  office  has  been 
affidavit,  that  the  d(!f('ndaiit,  l)y  means  preserved,  it  Keniin,  under  tlii!  Code  of 


928  Forms  Relating  to 

,  18 — ,  the  defendants  associated  themselves  together 


under  the  name  of  the  U.  S.  M,  C,  and  pretended  to  be  in- 
corporated as  a  medical  college  and  thereafter  assumed  to 
and  did  act  as  a  corporation  and  perform  pretended  corpo- 
rate acts  ;  and  they  established  a  pretended  medical  college 
in  the  city  of  N.  Y.  and  pretended  to  give  instruction  in  the 
art  of  medicine  and  surgery,  for  which  they  demanded  and 
received  compensation,  and  issued  and  granted  dijjlomas 
to  graduates  and  pretended  to  do  all  other  acts  pertaining 
to  and  ordinarily  done  by  incorporated  medical  colleges. 

That  the  said  defendants  were  not  and  are  not  in(;orpo- 
rated  nor  chartered  by  any  act  of  the  legislature  of  this 
State,  nor  by  the  Regents  of  the  University  of  the  State  of 
New  York,  nor  by  any  lawful  authoi-ity,  nor  by  any  au- 
thority, except  as  hereinafter  stated  ;  but  they  nssnnie  and 
pretend  that  they  have  been  incorporated  under  and  i)ursu- 
ant  to  the  provisions  of  the  act  of  the  legislature  known  as 
chapter  319  of  the  Laws  of  1848,  and  entitled  "an  act  for  the 
incorporation  of  benevolent,  charitable,  scientific  and  mis- 
sionary societies,"  passed  April  12,  1848,  and  the  several 
laws  amending  the  same  and  supplementary  thereto ;  and 
by  virtue  of  a  certificate  in  writing  acknowledged  before 
notaries  public,  with  the  consent  and  approval  of  one  of  our 
justices  of  the  Supreme  Court  of  the  State,  indorsed  thereon, 

Civil  Procedure.     Morris  v.  Whelan,  And  that  where  an  action  is  brought 

11    Abb.    N.    C,    64;    disapproving  by  the  attorney-general,  as  prescribed 

Palmer  v.  Foley,  36  N.  Y.  Super.  Ct.,  in  title  1  of  chapter  16  of  Code  of  Civil 

14  ;    45   How.    Pr.,    110.)     See,    also,  Procedure,  on  the  relation  or  informa- 

Johns'on  v.  Garside  (65  Hun,  208).  tion  of  a  person,   having  an  interest 

Where  two  or  more  persons  claim  to  in  the   question,  the  complaint  must 

be  entitled  to  the  same  office  or  fran-  allege,  and  the  title  to  the  action  must 

chise,  the  attorney-general  may  bring  show,  that  the  action  is  brought  upon 

the   action    against   all   to   determine  relation  of  that  person,  see  Code  Civ. 

their  respective  rights  thereto.     (Code  Pro.,  §  1986. 

Civ.  Pro.,  §  1954.)  That  attorney-general  cannot  receive 

That  the  action  is  to  be  brought  in  a  retainer,  it  being  contrary  to  Consti- 

the  name  of  the  people  of  the  State,  tution  (art.  5,  §  1)  that  he  should  do  so, 

see  Code  Civ.  Pro.,  §  1984.  see  People  ex  rel.  Gould  v.  Mut.  Union 

See,  also,  as  to  form  of  judgment  for  Tel.  Co.   (2  Civ.  Pro.  [McCarty],  295). 

costs  where  judgment  is  rendered  or  a  See,    also.  People    ex  rel.  Lardner  v. 

final   order  made  against  the  jieople  Cannon   (78    Hun,    544),   that  a  new 

and  that  execution  is  not  to  be  issued  attoj*ney-general  need  not  be  substi- 

against  the   people.    Code   Civ.  Pro.,  tuted  in  the  action  as  attorney  for  the 

§  1985 ;  and  see,  also.  People  v.  Den-  plaintiff. 

nisoa  (84  N.  Y.,  272).  "  See  note  2  to  form  No.  122. 


Actions  in  Behalf  of  the  People.  929 

filed  in  the  office  o*  the  clerk  of  the  county  of  N.  Y.,  May 
28.  1878,  and  also  in  the  office  of  the  secretary  of  state,  of 
which  certificate,  acknowledgments,  consent  and  approval 
copies  are  hereto  annexed,  marked  "A,"  and  made  a  part 
of  this  complaint. 

That  the  said  defendants  do  not  pretend  to  be  incorpo- 
rated by  or  pursuant  to  any  law,  or  by  reasons  other  than 
those  last  above  stated  ;  but  do  pretend  as  one  of  the  arti- 
cles of  association  that  "  the  business  and  purposes  of  this 
corporation  shall  be  to  establish  and  maintain  in  the  manner 
required  by  the  act  entitled  'an  act  relative  to  the  incorpo- 
ration of  colleges  and  academies,'  passed  by  the  legislature 
of  the  State  of  New  York,  April  12,  1853,"  a  medical  and 
surgical  college,  etc. 

That  said  defendants,  under  said  name,  are  still  assuming 
to  act  as  a  corporation,  and  to  do  corporate  acts  as  aforesaid 
as  an  incorporated  medical  college,  and  pretending  to  gradu- 
ate matriculates  with  the  degree  of  doctor  of  medicine  and 
issue  diplomas  accordingly. 

That  the  said  pretended  incoriDoration  is  not  authorized 
by  law  for  the  reasons  : 

First.  That  the  said  act  of  1848,  and  the  acts  amendatory 
thereof  and  supplementary  thereto,  furnish  no  sufficient  or 
lawful  authority  for  the  incorporation  of  a  medical  college. 

Second.  That  the  defendants  have  not  complied  with  the 
provisions  of  chapter  184  of  the  Laws  of  1853,  and  particu- 
larly with  sections  6  and  7  thereof,  in  that  they  have  not 
filed  any  certificate,  nor  furnished  evidence  to  the  regents 
of  the  university  of  the  subscription  of  fifty  thousand  dol- 
lars as  therein  provided,  nor  obtained  from  said  regents 
either  a  temporary  or  perpetual  charter  as  therein  provided. 

Wherefore  the  said  pkiintifi's  demand  that  it  be  adjudged 
that  the  defendants  are  not  legally  incorporated,  and  that 
said  pretended  U,  S.  M.  C.  is  not  an  incorporated  institution  ; 
that  the  defendants  are  acting  as  a  corporation  and  doing 
pretended  corporate  acts  witliout  autliority  of  law ;  and 
that  they,  the  defendants,  and  all  others  acting  witli  or 
under  them,  or  tlieir  pretended  authority,  be  enjoined  iind 
restrained  from  acting  as  a  body  corporate,  and  from  doing 
117 


930  Forms  Relating  to 

acts  as  a  corporation,  and  for  sucli  other  and  such  further 
relief  as  may  be  equitable.' 

L.  W.  R.,  Attorney -General, 
[Office  address.'] 
[Verification  as  in  forms  Nos.  151,  etc.] 


No.  1038. 
Affidavit  to  Obtain  Order  for  Delivery  of  Books  and  Papers. 

(Code  Civ.  Pro.,  §§  1952,  2471a.) 

[Title  of  cause.] 

To  Hon.  A.  C,  ajusticeof  the  Supreme  Court  in  the 

judicial  district  [or,  county  judge  of county]: 

A.  B.,  of ,  being  duly  sworn,  says,  and  makes 

his  complaint  pursuant  to  statute,  as  follows :  that  the 
above  entitled  action  was  brought  to  [state  purpose  of 
(action)]. 

That  final  judgment  was  rendered  therein  on  the 

day  of ,  18 — ,  a  copy  of  which  is  hereto  annexed, 

marked  A. 

That  this  deponent  has  duly  taken  the  oath  of  office  and 
has  given  his  official  bond  as  prescribed  by  law  and  has 
taken  upon  himself  the  execution  of  the  said  office  of 
[name  office]. 

That  immediately  thereafter  and  on  the day  of 

,  18 — ,  this  deponent  demanded  of  C.  D.,  the 

defendant  in  this  [action]  who  resides  at ,  in  the 

county  of ,  the  delivery  of  all  the   books  and 

papers  in  the  custody  or  possession  of,  or  under  the  con- 
trol of,  the  said  defendant  belonging  or  appertaining  to 
the  said  office  of  [name  office],  but  the  said  defendant 
refused  \or  has  neglected]  to  deliver  any  of  said  books  and 
papers  \or  describe  those  undelivered],  and  that  none  of 
said  books  or  papers  [above  mentioned],  which,  as  depo- 
nent is  informed  and  believes,  are  in  the  possession  or 
under  the  control  of  said  defendant,  have  been  delivered 
by  said  defendant  to  this  deponent.'^ 

A.  B. 

[Jurat  as  in  form  No.  46.] 

"'The  foregoing'  complaint  is  sub-  It  is  not  necessary  in  an  action 
stantially  fi-om  the  case  of  People  v.  brought  by  the  attorney-general  under 
Gunn  (96  N.  Y.,  317).  section  1948,  Code  Civ.  Pro.,  that  leave 


Forms  Relating  to 


930a 


of  the  court  to  bring  the  same  should 
be  obtained.  (People  v.  Boston,  H. 
T.  and  W.  R.  Co.,  27  Hun,  528.)  See, 
however.  People  ex  rel.  Gould  v.  Mut. 
Union  Tel.  Co.  (2  Civ.  Pro.  R.  [Mc- 
Carty],  295). 

An  action  in  the  nature  of  quo  war- 
ranto is,  it  seems,  the  appropriate  if 
not  the  only  action  to  test  the  legality 
of  a  corporation  formed  under  the 
general  village  act.  (People  v.  Clark, 
70  N.  Y.,  518.) 

"See  note  2  to  form  No.  122. 


^The  proceedings  are  now  regu- 
lated by  section  2471a  of  Code  of  Civil 
Procedure,  inserted  in  that  statute  by 
chapter  179  of  Laws  of  1893,  being 
title  13  of  chapter  17  of  said  Code. 
The  application  may  be  made  to  any 
justice  of  the  Supreme  Court  of  the 
district,  or  to  the  county  judge  of  the 
county  in  which  the  person  refusing 
resides.  The  proceedings  were  form- 
erly regulated  by  article  5  of  title  6 
of  chapter  5  of  the  first  part  of  the  R. 
S.  (7th  ed.,  p.  375). 


Actions  iist  Behalf  of  the  People.  931 

No.  1039. 
Order  to  Show  Cause  upon  Affidavit. 

(Code  Civ.  Pro.,  §§  1952,  2471a.) 

As  in  form  No.  325  to  word  "  why,"  and  from  thence  as 
follows :'  Why  he  should  not  be  compelled  to  deliver  to  the 
plaintiff,  A.  B  ,  the  books  and  papers  mentioned  and  de- 
scribed in  the  affidavit  of  said  A.  B.,  hereto  annexed,  dated 
,  18 —  [or  otherwise  describe  papers,  etc.]. 

And  it  is  fnrther  ordered,  that  copies  of  this  order,  and 
of  said  affidavits  and  papers  annexed  hereto,  be  served  upon 

the  said  defendant,  personally,  on  or  before  the 

day  of ,  18 — ,  and  upon  I.  J.,  the  attorney  for  the  said 

defendant,  personally,  or  [conclude  as  in  form  No.  325]. 


No.  1040. 
Affidavit  of  Defendant  to  Prevent  Issuing  of  Warrant. 

(Code  Civ.  Pro.,  §§  1952,  2471a.) 

[Title  of  cause.] 
County,  ss.  : 

C.  D.,  of ,  being  duly  sworn,  says  that  he  is  the 

defendant  in  the  above  entitled  action ;  that  he  has  truly 
delivered  over  to  the  plaintiff,  A.  B.,  in  this  action,  his  suc- 
cessor in  the  office  of  [name  office],  all  the  books  and  papers 

See,  also,  Conover  v.  Devlin  (26  Where  a  judgment  for  the  plaintiff, 
Barb.,  429),  In  re  Bartlett  (9  How.  under  which  he  has  been  put  into  pos- 
Pr.,  414),  In  re  Baker  (11  id.,  419),  session  of  the  books,  etc.,  pertaining- 
The  People  v.  Peabody  (26  Barb.,  to  the  office,  was  reversed  by  the 
437),  Matter  of  Bradley  (141  N.  Y.,  Court  of  Appeals,  and  a  new  trial 
o27).  People  ex  rel.  Salisbury  v.  Hoi-  granted  ;  ?itld,  that  the  latter  court, 
comb  (5  Misc.,  459),  Matter  of  Foley  under  section  1323  of  Code  Civ.  Pro., 
(S  id.,  196),  People  ex  rel.  Smith  v.  could  compel  restitution.  (People  v. 
Barrett  (29  State  Rep..  159).  Case  v.  Livingston.  80  N.  Y.,  66.) 
Campbell  (16  Abb.  N.  C.  269).  Bridg-  '  As  to  the  judge,  etc  .  to  whom  this 
man  v.  Hall  (id.,  272).  Matter  of  Mc-  application  is  to  be  made,  see  section 
rirory  v.  Henderson  (43  Hun,  438),  2471a  of  Code  of  Civil  Procedure,  sub- 
People  ex  rel.  Le  Roy  v.  Foley  (148  stituted  for  article  5  of  title  6  of  chap- 
N.  Y.,  677).  ter  5.  part  1.  of  R.  S.  (7th  ed..  p.  376). 

Where,  pending  the  proceedings,  a  by  chapter  179  of  Laws  of  1893  ;  and 

person,  not  a  party,  gets  posseflsion  of  generally  as  to    this    pi-oceeding,  see 

the    office,    und«r   claim    of    title    the  note  3  to  lu'^t  form,  No.  1038. 

judgment  does  not  affect  him.     (People  As  to  orders  to  show  cause,  see  rule 

v.  Murray  (13  N.  Y.,  535 ;  rev'g  8.  C,  .S7  of  <^<-n.  Rules  of  Prac.,  cited  in  note 

8  Daly,  347.)  1  to  form  No.  162. 


932  Forms  Relating  to 

in  his  custody,  or  appertaining  to  his  office,  within  his 
knowledge  or  to  his  belief.^ 

CD. 
[Jurat  as  in  form  No.  46.*] 


No.  1041. 

Order  Discharging  Defeiulaut  upon  Return  of  Order  to 

Show  Cause. 

(Code  Civ.  Pro.,  §§  1952,  2471a.) 

[Title  of  cause  or  proceeding.] 

Upon  the  return  of  the  order  to  show  cause,  made  by  me 

in  the  above  entitled  [action],  and  dated ,  18 — ,  why 

[the  defendant)  should  not  be  compelled  to  deliver  over  to 
the  plaintiff  all  the  books  and  papers  [mentioned  in  said 
order]  in  his  custody  as  [naming  office],  or  in  any  way 
appertaining  to  said  office,  with  proof  of  due  service  of  said 
order  upon  said  [defendant],  and  the  said  [defendant] 
having  made  affidavit  before  me,  pursuant  to  the  statute 
in  such  case  made  and  provided,  that  he  has  truly  delivered 
over  to  the  said  (plaintiff],  his  successor  in  said  office,  all 
the  books  and  papers  in  his  custody,  or  appertaining  to 
his  said  office,  within  his  knowledge: 

Now,  after  hearing,  etc.,  I  do  hereby  order,  that  all  fur- 
ther proceedings  before  me,  upon  the  complaint  of  [the 
plaintiff  |,  for  the  delivery  of  said  books  and  papers  shall 
cease,  and  that  the  said  [defendant]  be  discharged.^ 

Dated ,  1 . 

A.  O  ,  Judge  [or  Justice],  eta, 


No.  1042. 
Warrant  on  Failure  to  Make  AflBdavit,  etc. 

(Code  Civ.  Pro.,  §§  1952,  2471a.) 

[Title  of  cause.] 

Final  judgment  having,  on  the day  of 


18 — ,  been  rendered  in  the  above  entitled  action  upon  the 

*  See  section  2471a  of  Code  Civ.  Pro.,  the  justice  or  judge,  on  the  return  of 

and  note  3  to  form  No.  1038.    That  sec-  the  order.     (Id.)     Matter  of  McGrory 

tion  was  substituted  by  chapter  179  of  v.  Henderson  (43  Hun,  438). 
Laws  of  1893  for  section  52  of  chapter        ^  See   section    2471a   of    Code   Civ. 

5,  title  6,  article  5,   part  1,  of  R.  S.  Pro  ,  substituted  for  section  52  of  R.  S., 

(7th  ed.,  p.  376).  referred  to  in  note  1  to  form  No.  1040. 

'  The  affidavit  is  to  he  made  before 


Actions  in  Behalf  of  the  People.  933 

right  and  in  favor  of  the  plaintiff  therein,  and  adjudging 
him  to  be  entitled  to  the  office  of  [name  office],  and  adjudg- 
ing the  defendant  to  be  guilty  of  usurping  [or  intruding 
into,  or  unlawfully  holding]  the  said  office,  and  ousting  and 
excluding  the  said  defendant  therefrom,  and  the  said  plain- 
tiff having  duh^  taken  the  oath  of  office  and  given  his  official 
bond,  as  prescribed  by  law,  and  taken  upon  himself  the 
execution  of  said  office,  and  the  said  plaintiff  having  there- 
after, and  on  the day  of ,  18 — ,  demanded 

of  the  said  defendant  the  books  and  papers  in  his  custody, 
or  under  his  control,  belonging  to  the  said  office,  and  the 
said  defendant  having  refused  [or  neglected]  to  deliver  such 
books  and  papers  [or  a  part  of  said  books  and  papers  (de- 
scribing them)],  and  the  said  plaintiff  having  thereupon 
made  complaint  to  me  thereof,  pursuant  to  statute,  and  an 
order  to  show  cause  having  been  made  by  me,  returnable 
on  this  day  and  at  this  time  and  place,  and  due  proof  of 
the  service  of  said  order  having  been  made,  the  said  plain- 
tiff [and  said  defendant]  having  [personally  and],  by  their 
counsel,  appeared  before  me  at  said  time  and  place,  and  I 
having  proceeded  to  inquire  into  the  circumstances,  and  the 
said  defendant  not  having  made  affidavit  before  me  that  he 
has  truly  delivered  over  to  his  successor  all  the  books  and 
papers  in  his  custody  as  [name  office],  or  ai^pertaining  to 
said  office,  within  his  knowledge,  or  to  his  belief,  and  it 
having  appeared  that  [some  of]  such  books  and  papers 
are  withheld  by  said  defendant : 

Now,  therefore,  by  virtue  of  the  statute  in  that  case  made, 
I,  A.  O.,  judge  [or  justice],  etc.,  do,  in  the  name  of  the  peo- 
ple of  the  State  of  New  York,  command  the  sheriff  of  the 

county  of to  commit  the  said  defendant,  C.  D.,  to 

the  jail  of  the  said  county,  there  to  remain  until  he  shall 
deliver  such  books  and  papers,  or  be  otherwise  discharged 
according  to  law. 

Given  under  my  hand  and  seal  at ,  in  the  [said] 

county  of ,  this day  of ,  18—.' 

[L.  8.]  A.  O.,  Judge  [or  Justice'],  etc. 


'  See   In   the   Matter  of  Daniel   S.  requirement  of  the  complainant.  Bee 

Baker  (11  How.  Pr.,  41S),  as  to  form  section  2471a  of  Code   Civ.  Pro.,  Bub- 

of  Wan  aat.     See,  also,  note  3  to  form  etituted  for  section  54  of  above  citetl 

No.  1038.  statute  (R.  S.,  7th  ed.,  37G). 

Afl  to  B«arch  warrant  to  be  ianued  on 


934  Forms  Relating  to 

No.  1043. 

Complaint  in  Action  for  Damages  after  Final  Judgment  in 
Action  against  Person  Usurping,  etc..  Public  Office. 

(Code  Civ.  Pro.,  g  1953.) 

[Title  of  cause.] 

The  complaint  of  the  above  named  plaintiff  respectfully 

shows,  that  heretofore  and  on  the day  of , 

18 — ,  an  action  was  brought  by  the  people  of  the  State  of 
New  York  upon  the  relation  of  the  above  named  plaintiff, 
as  plaintiffs,  against  C.  D.,  the  defendant  above  named,  as 
defendant,  b}^  the  complaint  in  which  action  it  was  alleged 
that  the  said  C.  D.  had  [state  briefly  the  nature  of  the 
action]. 

That  such  proceedings  were  had  in  said  action  that  on  the 

day  of ,  18 — ,  final  judgment  was  rendered 

therein,  a  copy  of  which  is  hereto  annexed,  marked  A  [or 
state  substance  of  judgment]. 

That  the  said  defendant  has  received  from  [stating  officer] 

as  salary  belonging  and  apx^ertaining  to  said  office  of 

for  and  during  the  period  of  his  usurpation  of  said  office, 

namely,  from  the day  of ,  18—,  up  to  the 

day  of ,  18 — ,  the  sum  of dollars, 

which  sum  belonged  by  right  to  the  said  plaintiff  and  not 
to  the  said  defendant. 

That  by  reason  of  the  said  usurpation,  etc.,  of  the  said 

office  of  [name  office]  by  said  C.  D.,  the  plaintiff  has  been 

damaged  in  the  sum  of dollars,  for  which  amount, 

with  costs  of  this  action,  plaintiff  demands  judgment  against 

defendant.* 

F.  R.,  Plaint i^'s  Attorney. 

[Office  address.'] 
[Verification  as  in  forms  Nos.  153,  etc.] 

*See   People   ex  rel.  Swinburne   v.  R.  [45  N.  J.  L.]),   Hagan   v.  City  of 

Nolan  (30  Hun,  484),  as  to  practice  be-  Brooklyn  (126  N.  Y.,  643),  Nichols  v. 

fore  amendment  of  1SS4  to  section  1953  McLean  (101  N.  Y.,  526  ;  33  A.  L.  J., 

of  Code  Civ.  Pro.  ;  and  see  note  1  to  291),  People  ex  rel.  Wren  v.  Goetting 

form  No.  1036  as  to  nature  of  such  (133  N.  Y,,  569),   People  ex  rel.  Swin- 

amendment.  h)urne  v.  Nolan  (101  id.,  539,  aft"'g  S. 

As  to  action  to  recover   salary,  see  C,  32  Hun,  612),  Morley  v.  Mayor  of 

Dolan  V.  The  Mayor  (68   N.   Y.,  274;  N.  Y.  (35  State   Rep.,  262),  Demarest 

afiPg  S.  C,  8  Hun,  440),  Nichol  v.  Mc-  v.  Mayor,  etc.,  of  N.  Y.  (74  Hun,  517, 

Lean  (63  How.,  448),  Steehr  v.  Curran  aflPd  S.  C,  147  N.  Y.,  203). 
(26  Alb.  L.  J.,  268  ;  S.  C,  15  Vroom.'s        'See  note  2  to  form  No.  122. 


Forms  Pvelating  to  934a 

No.  1042a. 
Search  "Warrant  for  such  Books  and  Papers  "Withheld. 

(Code  Civ.  Pn\    §^S  19r)2.  2-l71a  ) 

The  People    of  the  State  of  New    York,   to  the  sheriff  of  the 

county  of ,  or  to  any  constable  of  any  town  in  said 

county : 

As  in  form  No.  1042  to  paragraph  beginning  with 
word  "  Now,"  and  from  thence  as  follows: 

Now,  therefore,  you  are  commanded  in  the  day-time  to 
search  the  house  of  said  defendant  [naming  him],  situated 
[insert  a  particular  designation  or  description  of  the  said 
house,  and  of  any  other  place  to  be  searched],  for  the 
said  books  and  papers  [or  either  of  them  as  the  case  may 
be],  so  withheld,  and  all  other  such  books  and  papers  as 
belonged  to  the  said  [naming  defendant],  as  [stating  offi- 
cial title],  as  aforesaid,  in  his  official  capacity,  and  which 
appertained  to  the  said  office  of  [naming  same],  and  seize 
and  bring  them  before  the  undersigned. 

Witness,  Hon.  A.  C,  Justice  of  the  Supreme  Court  (or 

County  Judge  of county),  at  the  (city)  of , 

this day  of ,  1 .^ 

[Signature  and  Seal.] 


'  If  any  such  books  and  papers  are  such   office,   and,    if   so,    shall   cause 

brought  before  the  judge  or  justice,  them  to  be  delivered  to  the  coraplain- 

by  virtue   of  such   warrant,   he   shall  ant.     (Code  Civ.  Pro.,  §  2471a.) 
determine  whether  they  appertain  to 


Actions  in  Behalf  of  the  People.  935 

No.  1044. 

Final  Judgment  in  Action  against  Persons  Acting  as  Cor- 
poration Without  being  duly  Incorporated. 

(Code  Civ.  Pro.,  §  1955.) 

After  recitals,  etc.  (see  form  No.  457),  as  follows : 

Now,  on  motion  of  L.  W.  R.,  attorney-general,  attorney 
for  the  plaintiffs,  it  is  adjudged : 

That  the  said  defendants  are  not,  and  have  not  been,  in- 
corporated as  the  United  States  Medical  College,  with  the 
franchises  or  powers  of  a  medical  college,  and  that  the  said 
United  States  Medical  College,  mentioned  in  the  complaint, 
is  not,  and  never  has  been,  incorjjorated  as.  a  medical  or 
surgical  college,  and  does  not  possess  the  powers  or  fran- 
chises of  a  medical  college  : 

And  it  is  further  adjudged,  that  the  defendants,  and  each 
of  them,  and  all  persons  acting  with  or  under  them,  or  any 
of  them,  be  and  they  are  hereby  enjoined  and  restrained 
from  acting,  or  assuming  to  act,  as  an  incorporated  medical 
or  surgical  college,  and  from  usurping  or  exercising  the 
powers,  functions  or  franchises  of  an  incorporated  medical 
or  surgical  college,  and  from  maintaining  or  assuming  to 
maintain,  for  gain  or  otherwise,  a  medical  or  surgical  col- 
lege, and  from  granting  di^Dlomas  or  certificates  of  gradua- 
tion to  medical  students  or  practitioners,  purx;)orting  to  be 
granted  by  a  medical  or  surgical  college,  and  that  the  plain- 
tiffs recover,  etc.*        

No.  1045. 
Final  Judgment  in  Action  for  Usurping,  etc..  Office. 

(Code  Civ.  Pro.,  §  1956.) 

[Title  of  cause.] 

Judgment  of  the day  of ,  18—. 

The  issue  joined  in  this  cause  having  been  brought  to 
trial  at  a  circuit  of  this  court,  held  at  the  city  of  Albany  on 
the  25tli  day  of  June,  1883,  before  Mr.  Justice  W.  and  a 
jury,  and  on  such  trial  the  jury  having,  by  their  verdict, 
found  and  determined : 

'  This  form  is  from  tlie  ctise  of  Pco-  the  complaint  is  given  at  form  No. 
pie  V.  Gunn  (96  N.  Y.,  317),  in  which     1037. 


936  FoKMS  Relating  to 

First.  That  on  the  11th  day  of  April,  1882,  at  a  charter 
election  then  held  in  the  city  of  Albany,  J.  S.,  the  above 
named  relator,  was  duly  elected  mayor  thereof. 

Second.  That  M.  N.  N.  was  not  ejected  at  that  time,  and 
was,  at  the  time  of  the  commencement  of  this  action,  and 
has  since  been,  wrongfully  holding  said  office : 

Now,  on  motion  of  L.  AV.  K.,  attorney-general,  it  is 

Ordered,  adjudged  and  determined,  that  the  said  relator, 
J.  S.,  was  rightfully  elected  to  the  office  aforesaid,  and  en- 
titled to  hold  said  office  under  said  election  ;  and  that  the 
said  M.  N.  N.  was  not  elected  to  said  office  [and  that  the 
said  plaintiff  is  entitled  to  recover  against  the  defendant 
such  damages,  penalty  and  costs  as  may  be  adjudged,  and 
which  adjudication  may  be  added  to  the  foot  hereof].' 


Article  Second. 

FORM  RELATING  TO   ACTION  TO  VACATE   LETTERS  PATENT. 

(Code  Civ.  Pro.,  Ch.  16,  Tit.  1,  Art.  2.) 

No.  1046.     Complaint  in  action  to  vacate  letters  patent. 


No.  1046. 

Complaint  in  Action  to  Vacate  Letters  Patent. 

(Code  Civ.  Pro.,  §  1957.) 

For  form  of  this  complaint,  see  People  v.  Clarke  (9  N.  Y., 
349). 

Akticle  Third. 

forms  relating  to  actions  by  the  people  for  a  fine, 
penalty  or  forfeiture,  or  upon  a  forfeited  recog- 
NIZANCE. 

(Code  Civ.  Pro.,  Ch.  16,  Tit.  1,  Art.  3.) 

No.  10-47.     Indorsement  upon  summons  in  action  by  attorney-srcneral  or  dis- 
trict attorney  for  forfeiture  or  penalty  to  the  people  of  the  State. 

1048.  Complaint  on  recognizance  after  indictment  found. 

1049.  Complaint  on  recognizance  after  complaint  made  and  before  in- 

dictment found. 

'  This  judgment  is  from  the  case  of  ets  should  not  be  included.     As  to  the 

People  ex  rel.  Swinburne  v.  Nolan  (30  nature  of  that  amendment,  see  note  1 

Hiin,  484).     Siuce  the  amendment  of  to  form  No.  1036. 
1884,  by  ch.  399.  this  clause  in  brack- 


Actions  in  Behalf  of  the  People.  937 

No.  1047. 

Indorsement  under  Summons  in  Action  by  Attorney-Gen- 
eral or  District  Attorney  for  Forfeiture  or  Penalty  to 
the  People  of  the  State. 

(Code  Civ.  Pro.,  §  1964.) 

Same  as  form  No.  891  (page  777). 


No.  1048. 
Complaint  on  Recognizance  after  Indictment  Found. 

(Code  Civ.  Pro.,  §  1966.) 

[Title  of  cause.] 

The  plaintiff  complains  of  the  defendant  and  alleges,  that 

said  defendant  heretofore,  to  wit:  on  the day  of , 

18 — ,  and  at  the of ,  in  the  county  of , 

and  within  the  jurisdiction  of  this  court,  personally  came 

before  [the  coiiatj,  in  the  county  of ,  and  then  and 

there  acknowledged  to  owe  the  people  of  the  State  of  New 

York  the  sum  of dollars,  which  said  recognizance 

was  and  is  subject  to  a  certain  condition  thereunder  written, 
which  condition  was  that  if  one  E.  F.  should  personally 

appear  at  the  then  next  Court  of to  be  hold  en  in 

and  for  the  countj^  of ,  then  and  there  to  answer  to 

a  certain  indictment  pending  against  him  for ,  and 

should  not  dejoart  the  court  without  leave,  and  should  abide 
the  order  of  such  court  in  the  premises,  then  the  said  recog- 
nizance in  and  by  the  said  condition  thereof  was  to  be  void, 
or  else  to  remain  in  full  force  ;  which  said  recognizance, 
taken  and  acknowledged  as  aforesaid,  afterwards,  to  wit: 

on  the day  of ,  18—,  was  by  an  order  of 

the  said  last  mentioned  court,  as  b}^  the  said  recognizance 
and  the  said  condition  thereof  now  remaining  of  record  in 

the  office  of  the  clerk  of  the  county  of ,  in  the 

county  of ,  reference  being  thereto  had  will  more 

fully  and  at  large  appear.    . 

And  tlie  said  plaintiffs  aver,  that  the  next  Court  of 

to  be  h olden  and  held  next  after  the  signing  and  acknowl- 
edgment of  the  said  recognizance  in  and  foi-  tlin  county  of 

,  was  held  at  the ,  in  tlie  county  of ,  in 

118 


938  Forms  Relating  to 

and  for  the  county  of ,  on  the day  of , 

18 — ,  before  [one  of]  the  judges  of  the  same  court,  and 
that  the  said  last  mentioned  court  commenced  its  session  on 
the  said  last  mentioned  day  ;  and  at  the  said  last  mentioned 
court,  held  on  the  day  and  at  the  place  last  mentioned,  the 
said  indictment  then  was  pending  undetermined  therein, 
and  the  said  recognizance  last  mentioned  has  been  regulaily 
respited  thereto,  and  then  was  a  record  of  the  said  last  men- 
tioned court. 

And  the  said  plaintiffs  further  say,  that  afterwards,  at 
the  said  term  of  the  said  last  mentioned  court  holden  in  and 

for  the  said  county  of ,  at  the ,  in  the  county 

of ,  the  said failed  in  the  performance  of 

the  condition  of  the  said  recognizance  in  this. 

That  the  said  E.  F.  being  then  and  there  called  in  open 
court,  during  the  sitting  of  the  said  court,  to  Avit :  on  the 

daj'  of ,  18 — ,  did  not  personally  appear 

in  said  court,  and  abide  the  order  of  the  said  court  in  the 
premises,  but  therein  wholly  failed  and  made  default ; 
whereupon  an  order  was  entered  by  the  said  court  forfeit- 
ing the  said  recognizance,  and  directing  the  same  to  be 
prosecuted  according  to  law.' 

And  the  said  plaintiffs  further  say,  that  the  said  defend- 
ant has  not  paid  the  said  sum  of  ■ dollars,  so  as 

aforesaid  acknowledged  by  him  to  be  owing  to  the  said 
plaintiffs,  nor  any  part  thereof,  and  that  the  said  recogniz- 
ance is  in  full  force,  strength  and  effect,  in  no  manner 
reversed,  vacated  or  satisfied,  and  that  they,  the  said  plain- 
tiffs, have  not  yet  obtained  satisfaction  of  the  same,  nor  of 
any  part  thereof ;  whereby  an  action  has  accrued  to  the 
said  plaintiffs  to  demand  and  have  of  and  from  the  said 

defendant  the  said  sum  of  dollars  hereinabove 

demanded. 

Nevertheless,  the  said  defendant  [although  often  re- 
quested to  do  so],  has  not  paid  the  said  sum  of  money 
above  demanded  to  the  said  plaintiffs,  or  any  part  thereof, 
but  to  do  so  has  hitherto  wholly  neglected  and  refused  and 
still  does  neglect  and  refuse  [to  the  damage  of  the  plaintiffs 


'  See  Code  Civ.  Pro.,  §  1965. 


Actions  iisr  Behalf  of  the  People.  939 

of dollars],'  for  which  amount,  with  interest  there- 
upon from  the day  of ,  18 — ,  plaintiffs 

demand  judgment  against  the  defendant." 

[Signature,  etc.,  as  in  form  No.  969.] 
[Verification  as  in  form  No.  153,  adding  after  (f)  in  No. 
152,  as  follows  :  Are  the  people  of  the  State.'] 


No.  1049. 


Complaint  on  a  Recognizance  after  Complaint  made  and 
Before  Indictment  Found. 

(Code  Civ.  Pro.,  §  1966.) 

[Title  of  cause.] 
The  plaintiff  comjplains  of  the  defendant  and  alleges,  that 

the  said  defendant  heretofore,  to  wit :  on  the day 

of ,  18 — ,  at  the  town  of ,  in  the  county  of 

,  and  within  the  jurisdiction  of  this  court,  person- 
ally came  before  O.  M.,  one  of  the  justices  of  the  i:)eace  for 

preserving  the  X)eace  in  the  county  of as  aforesaid, 

in  his  own  j^roper  person,  and  then  and  there  entered  into  a 
recognizance,  in  writing,  signed  with  his  own  hand,  by  which 
recognizance  the  said  defendant  acknowledged  E.  F.  to  owe 

to  said  plaintiffs  the  sum  of dollars,  and  the  said 

defendant  did  then  and  there  consent,  grant  and  agree,  that 
the  said  sum  should  be  made  of  his  goods  and  chattels,  lands 
and  tenements,  and  levied  to  the  use  of  the  said  plaintiffs 
if  said  E.  F.  should  fail  in  performing  the  condition  of  the 
said  recognizance,  which  condition  was,  that  E,  F.,  the  said 

,  should  personally  appear  at  the  then  next  court 

having  criminal  jurisdiction  of  said  offense,  to  be  liolden  in 

and  for  the  county  of ,  then  and  there  to  answer 

an  indictment  to  be  preferred  against  liini  for  the  offense 
aftjresaid,  and  to  do  and  receive  what  should,  by  said  court, 
be  then  and  there  enjoined  upon  him,  and  should  not  de- 
part the  court  without  leave,  and  should  in  the  meanlinie 
keep  the  i)eace. 

'  It  is  not  necessary,  in  such  an  ac-  nicnl  aljsolute,  for  the  penalty  of  Ihe 

lion,  to  allege  and  prove  any  damages  recognizance.    (CodeCMv.  Pro.,  ^^  UJOfS.) 

by  reason  of  the  breach  of  the  condi-  '•'  JSee  People  v.  8cott  (67  N.  Y.,  585). 

lion;  butwherethepeopleureentitledto  'See,  also,  form  of  verification  iu 

judgment  therein,  they  must  have  judg-  form  No.  1050. 


940  Forms  Relattno  to 

And  upon  the  performance  of  the  said  condition,  the  said 
recognizance  was  to  be  void,  otlierwise  of  force  ;  which  said 
recognizance,  taken  and  acknowledged  as  above,  before  the 
said  O.  M.,  one  of  the  justices  of  the  peace  for  preserving 
the  peace  as  aforesaid,  he  having  full  power  and  competent 
authority  to  take  the  same  afterwards,  that  is  to  say  :  on 

the day  of ,  in  the  year  18 — ,  was  duly 

filed  of  record  by  the  clerk  of  said  county  of ,  at 

his  office  in  the ;  and  the  said  plain  tififs  aver  that 

the  next  court  of ,  to  be  liolden  and  held  next 

after  the  signing  and  acknowledgment  of  said  recognizance 

in  and  for  the  county  of ,  commenced  its  session 

and  was  held  at  the ,  in  the ,  in  and  for 

the  county  of ,  on  the day  of ,  18—. 

And  such  proceedings  were  thereupon  had  in  the  said 
court,  that,  at  the  said  court  commencing  its  session  and 
held  on  the  day  and  at  the  place  aforesaid,  an  indictment 

was  found  and  presented  against  the  said  E.  F.  for , 

and  such  proceedings  were  thereupon  afterwards  had,  that 
the  said  recognizance  was,  in  due  form  of  law,  respited  and 

continued  until  and  to  the  term  of ,  holden  at  the 

.  in  the  county  of ,  on  the day  of 

,  18 — ,   as  by  the  record  of  the  said  recognizance 

and  proceedings  thereof,  still  remaining  in  the  said  court  at 

the ,  in  the  county  of aforesaid,  more  fully 

appears. 

And  the  before  mentioned  plaintiffs  do  further  say,  that 
afterwards,  at  the  said  term  of   the  said  last  mentioned 

court,  holden  in  and  for  the  said  county  of ,  to  wit : 

the  said  court  commencing  on  the day  of , 

18—,  the  said  E.  F.  failed  in  the  performance  of  the  condi- 
tion of  the  said  recognizance  in  this:  that  the  said  E.  F., 
being  then  and  there  called  in  open  court,  during  the  sitting 

of  said  court,  to  wit,  on  the day  of ,  18—, 

did  not  personally  appear  in  and  abide  the  order  of  the  said 
court,  but  therein  wholly  failed  and  made  default ;  where- 
upon an  order  was  entered  by  the  said  court  forfeiting  the 
said  recognizance,  and  directing  the  same  to  be  prosecuted 
according  to  law,  as  by  the  record  and  proceedings  of  the 
taid  court  will  more  fully  and  at  large  appear. 


Actions  in  Behalf  of  the  People.  941 

And  the  said  plaintiffs  furtlier  say,  that  the  said  defend- 
ant has  not  paid  the  sum  of dollars  so  as  aforesaid, 

acknowledged  separately  by  said  defendant  to  be  owing  to 
the  said  plaintiffs. 

And  the  said  plaintiffs  aver,  that  the  record  of  the  said 
recognizance  remains  in  full  force,  strength  and  effect,  in 
no  manner  reversed,  vacated  or  satisfied,  and  that  they,  the 
said  plaintiffs,  have  not  yet  obtained  satisfaction  of  the 
same,  whereby  an  action  hath  accrued  to  the  said  plaintiff's 
to  demand  and  have  of  the  said  defendant  the  said  sum  of 

dollars.     Nevertheless  the  said  defendant,  although 

often  requested,  has  not  paid  the  said  sum  of  money,  or  any 
part  thereof,  to  the  said  ^^laintiffs,  but  hitherto  has  refused, 
and  still  doth  refuse,  to  pay  the  same  to  the  said  jilaintiffs 
[to  the  damage  oi  the  said  plaintiffs  of dollars]. 

Wherefore  the  said  plaintiffs  [prayer  for  judgment  as  in 
form  No.  1048],' 

[Signature,  etc,  as  in  form  No.  969.] 

[Verification  as  in  last  form  No.  1048.] 


Article  Fourth. 

FORM  RELATING  TO  CERTAIN  ACTIONS  FOUNDED  UPON  THE 
SPOLIATION  OR  OTHER  MISAPPROPRIATION  OF  PUBLIC 
PROPERTY. 

(Code  Civ.  Pro.,  Ch.  16.  Tit.  1,  Art.  4.) 

No.  1050.     Complaint  in  action  for  public  funds  illegally  obtained,  converted, 
etc.  

No.  1050. 

Complaint  in  Action  for  Public  Funds  Illegally  Obtained, 
Converted,  etc. 

(Code  Civ.  Pro.,  §  1969.) 

[Title  of  cause,] 

The  complaint  of  the  people  of  the  State  of  N.  Y.,  by 
D.  P.,  their  attorney-general,  plaintiffs  in  the  above  enti- 
tled action,  against  W.  T.  and  the  -mayor,  aldermen  and 
commonalty  of  the  city  of  N.  Y.,  defendants  in  the  same 
action,  respectfully  shows  and  allegas  : 

First.  That  by  virtue  of  an  act  of  the  legislature  of  tliia 

'  8ce  notes  to  form  No.  101b. 


942  FoKMs  Relating  to 

State,  passed  on  tlie  26th  day  of  April,  1870,  entitled  "an 
act  to  make  furtlier  provision  for  the  government  of  the 
connty  of  N.  Y.,"  it  was  enacted  that  all  liabilities  against 
said  county,  previous  to  the  passage  of  that  act,  should  be 
audited  by  the  mayor  of  the  city  of  N.  Y.,  the  comx^ftroller 
of  said  city  and  the  then  present  president  of  the  board  of 
supervisors  of  the  said  county,  and  that  the  amounts  which 
should  be  found  to  be  due  should  be  provided  for  by  the 
issue  of  revenue  bonds  of  the  said  county,  payable  during 
the  year  1871  ;  that  the  said  board  of  supervisors  should 
include  in  the  ordinance  levying  the  taxes  for  the  year  1871 
an  amount  sufficient  to  pay  said  bonds,  and  the  interest 
thereon,  and  that  the  claims  on  such  liabilities  should  be 
paid  by  the  said  comptroller  to  the  partj"  or  parties  entitled 
to  receive  the  same  upon  the  certificate  of  the  said  three 
officers  or  persons  so  required  to  audit  in  that  behalf  by  the 
said  act. 

That  at  the  passage  of  said  act  A.  0.  H.  was  mayor  of  the 
said  city,  R.  B.  C.  was  the  comptroller  thereof,  and  the  said 
W.  M.  T.  was  president  of  the  board  of  supervisors  of  the 
said  county ;  that  the  said  W.  M.  T.  continued  to  be  such 
j)resident  until  the  fourth  day  of  July  next  thereafter,  and 
the  said  H.  and  C.  respectively  continued  to  hold  their  said 
respective  offices  during  the  time  of  all  the  acts  and  trans- 
actions hereinafter  mentioned. 

That  after  the  passage  of  such  act,  and  on  or  about  the 
4th  day  of  May,  1870,  with  intent  to  cheat  and  defraud  the 
county  of  N".  Y.  and  the  tax-payers  thereof  and  the  people 
of  the  State  of  N.  Y.,  the  said  W.  M.  T.,  and  one  J.  W., 
since  deceased,  did  unlawfully  and  fraudulently  contrive, 
conspire  and  agree  together  to  procure  false  and  pretended 
claims  to  be  set  up  and  to  be  allowed  and  paid  in  formal 
compliance  with  said  act  and  in  the  manner  hereinafter 
stated. 

That  after  the  passage  of  such  act,  and  after  the  said 
board  of  three  auditors  in  the  same  act  mentioned  had  held 
the  meeting  hereinafter  mentioned,  and  before  the  13th  day 
of  August,  1870,  several  pretended  claims,  falsely  alleged 
and  purporting  to  be  such  liabilities  of  said  county,  within 
the  true  intent  and  meaning  of  the  said  act,  amounting  in 


.  Actions  in  Behalf  of  the  People.  943 

the  aggregate  to  six  million,  one  hundred  and  ninety-eight 
thousand,  nine  hundred  and  fifty-seven  dollars  and  eighty- 
live  cents,  as  specified  in  the  annexed  schedule  thereof, 
marked  A,  which  is  made  part  of  this  complaint,  were  by 
the  said  three  auditors,  in  apparent  and  formal  compliance 
with  the  terms  of  said  act,  resj^ectively  certified  to  have  been 
so  audited  and  allowed  by  them,  as  hereinafter  more  i^articu- 
larly  stated. 

That  from  time  to  time,  as  such  certifications  were  re- 
spectively made  known  to  him  or  his  subordinates,  the  said 
comptroller,  in  order  to  i^rovide,  as  prescribed  by  said  act, 
funds  to  pay  the  amount  so  certified,  caused  to  be  issued 
bonds,  as  prescribed  by  said  act,  and  obtained  thereon  from 
bona  jide  purchasers  of  such  bonds,  j^rior  to  the  said  thir- 
teenth day  of  August  in  the  year  last  aforesaid,  the  said 
sum  of  six  million,  one  hundred  and  ninety-eight  thousand, 
nine  hundred  and  fifty-seven  dollars  and  eighty-five  cents, 
which  last  mentioned  sum  was,  in  the  usual  modes  of  keep- 
ing moneys  officially  received  on  account  of  said  county, 
deposited  in  the  National  Broadway  Bank  of  the  city  of 
New  York  to  the  credit  of  an  account  kept  by  the  cham- 
berlain of  the  city  of  N,  Y.,  as  county  treasurer  of  the  said 
county,  by  virtue  of  his  said  oflBcial  character  as  such 
chamberlain. 

That  the  moneys  so  deposited  as  aforesaid  were  not,  nor 
was  any  of  them,  ever  examined  or  audited  by  the  said 
board  of  three  auditors,  or  by  any  of  them,  and  that  but 
one  meeting  of  such  board  of  auditors  was  ever  held. 

That  at  such  meeting  no  accounts,  claims  or  liabilities 
against  the  said  county,  or  under  said  act,  were  presented 
or  considered,  nor  was  any  other  2:)roceeding  had  thereat, 
except  that  a  paper  was  then  and  there  subscribed  by  the 
said  three  auditors  so  in  said  act  mentioned. 

That  such  meeting  was  held  on  the  5th  day  of  May,  in 
the  year  last  aforesaid,  and  that  such  paper  now  remains 
in  the  said  comptroller's  office,  and  is  in  the  following 
words : 

Comptroller's  Office,  May  5,  1870. 

The  undersigned  meet  as  a  commission,  under  and  hy 
virtue  of  section  four  of  chapter  'J82  of  the  laws  of  1870. 


944  Forms  Relating  to 

On  motion  of  the  mayor  it  is  resolved,  that  the  county 
andit-or  collect  from  the  aj^projoriate  committees  of  the 
board  of  supervisors  all  bills  and  liabilities  against  the 
county,  incurred  prior  to  April  26,  1870,  and  amounts  now- 
due  thereon,  and  that  the  evidence  of  the  same  be  the  au- 
thorization of  the  same  by  the  said  board,  or  its  apjiropriate 
committee,  on  certificate  of  clerk  or  president ;  and  that 
thereupon  the  said  county  auditor  annex  the  vouchers  to 
the  appropriate  blanks  for  our  signature  and  action,  as 
directed  by  the  section  aforesaid,  and  payment. 

A.  O.  H.,  Mayor. 

W.  M.  T.,  FresH  Board  of  Suz>erv's. 

R.  B.  C,  Comjptr oiler. 

That  at  the  date  of  such  paper,  and  during  all  the  pecun- 
iary transactions  hereinafter  mentioned,  the  said  J.  W., 
since  deceased,  was  called  and  styled  the  county  auditor, 
and  was  the  person  intended  by  that  style  of  office  in  buch 
last  mentioned  paper. 

That  said  W.,  or  his  assistants,  to  the  lolaintiffs  and  their 
attorney-general  unknown,  from  time  to  time,  after  the 
making  of  such  paper,  and  prior  to  the  said  13th  day  of 
August,  acted  upon  the  said  pretended  accounts  of  claims 
mentioned  in  schedule  A  as  aforesaid,  which  were,  in  point 
of  form,  authenticated  conformably  to  the  requisites  of  such 
last  mentioned  paper,  to  each  of  which  he,  the  said  AV., 
attached  a  certificate  of  allowance  or  audit,  filled  up  as  to 
the  amount  and  date  in  his  own  hand- writing,  the  residue 
being  in  print ;  that  a  blank  form  of  such  certificate  is  con- 
tained in  the  schedule  marked  "C,"  to  this  complaint 
annexed  as  a  part  thereof :  whereupon  each  of  the  said 
board  of  three  auditors,  separately,  without  any  investi- 
gation or  conference  with,  or  the  j^resence  of  either  of  the 
other  members  thereof,  signed  the  same  ;  and  thereupon, 
by  direction  of  the  said  comptroller,  a  warrant  for  the  pay- 
ment of  such  claim  was  prepared,  signed  by  the  said  comp- 
trollei  and  countersigned  by  the  said  mayor  and  one  J.  B. 
Y.,  then  clerk  of  the  said  board  of  supervisors,  on  which, 
on  the  day  of  the  date  of  the  same,  the  said  bank,  in  good 
faith,  and  without  any  knowledge  or  notice  of  the  fraudu- 


Actions  in  Behalf  of  the  People.  945 

lent  acts,  practices  or  intents  in  this  complaint  mentioned, 
or  of  any  of  them,  did,  in  the  due  and  ordinary  course  of 
business,  for  and  in  behalf  of  said  county  treasurer,  and  to 
the  debit  of  his  said  account,  pay  to  some  person  or  persons, 
to  the  plaintiffs  and  their  attorney-general  unknown,  on  pre- 
sentation of  such  warrant,  the  amount  thereof,  in  the  usual 
method  of  paying  checks  upon  banks. 

That  every  warrant  was  in  the  form  usually  and  lawfully 
employed  in  drawing  money  from  the  bank  account  of  such 
county  treasurer  in  x)ayment  of  claims  and  liabilities  of  the 
said  county,  after  such  claims  had  been  duly  audited,  al- 
lowed and  ordered  to  be  paid  by  the  proper  officers  in  that 
behalf ;  and  that  the  schedule  marked  D,  to  this  complaint 
annexed,  and  hereby  made  a  part  thereof,  contains  in  blank 
the  form  of  all  such  warrants. 

That  the  said  accounts  and  claims  so  pretended  to  have 
been  audited,  and  for  which  warrants  w^ere  so  made  and  paid 
as  aforesaid,  and  which  are  mentioned  in  the  said  schedule 
marked  A,  were  all  false,  fictitious  and  fraudulent,  and  did 
not,  nor  did  any  of  them,  represent  any  liabilities  or  lia 
bility  against  the  said  county,  or  any  real  or  actual  liabili- 
ties or  liability,  which,  according  to  the  true  intent  and 
meaning  of  said  act  of  the  legislature,  were  directed  to  be 
audited,  provided  for  or  paid,  or  any  just  or  lawful  demand 
whatever. 

That  the  said  W.  M.  T.  and  J.  W.,  under  and  in  pursu- 
ance of  the  unlawful  and  fraudulent  combination,  conspir- 
acy and  agreement  aforesaid,  betw^een  them,  and  with  the 
intent  to  cheat  and  defraud  as  aforesaid,  procured  the  said 
false  and  fraudulent  claims  and  accounts  to  be  prepared 
and  made  up,  audited  and  certified  as  aforesaid,  in  the  form 
required  by  the  act  aforesaid,  they,  the  said  W.  M.  T.  and 
J.  AV.,  well  knowing  at  the  times  when  he  the  said  W.  M.  T. 
so  certified  such  claims  respectively,  that  the  said  claims 
were  false,  fictitious  and  frnndulf-nt  as  aforesaid,  and  in  like 
fraudulent  manner,  and  with  like  fraudulent  intent  as  last 
aforesaid,  obtained  such  warrants  mentioned  in  said  sched- 
ule A,  and  procured  payment  thereof  from  the  said  bank  as 
aforesaid,  and  fj-audiilenfly  obt.-iiiicd  to  (heir  own  nse  the 
Baid  Sinn  of  six  million,  one  hundred  and  ninety-ei^ht  I|i(»m- 
111) 


946  Forms  Relating  to 

sand,  nine  hundred  and  fifty-seven  dollars  and  eighty-five 
cents,  so  paid  them  as  aforesaid. 

That  the  said  schedule  marked  A,  contains  a  statement  of 
the  said  warrants  respectively,  showing  as  to  each  warrant 
the  following  particulars  namely,  [here  follow  the  par- 
ticulars]. 

That  the  said  money  so  paid  upon  the  said  warrants  by 
the  said  bank  and  so  obtained  thereon  and  converted  to 
their  own  use  by  the  said  W.  M.  T,  and  J.  AV,,  have  not, 
nor  have  any  of  them,  or  any  part  thereof,  been  recovered 
back  or  restored  unto  the  proper  or  lawful  official  receiver, 
depository  or  custodian  thereof,  either  in  specie  or  in  com- 
pensation for  the  same,  or  otherwise. 

Second.  That  the  said  defendants,  the  mayor,  aldermen 
and  commonalty  of  the  city  of  N.  Y.,  set  up  and  pretend  to 
some  right  or  interest  in  the  premises. 

And  the  said  plaintiffs  therefore  demand  judgment  against 
the  said  defendant,  W.  M.  T.,  for  the  said  sum  of  six  mil- 
lion, one  hundred  and  ninety-eight  thousand,  nine  hundred 
and  fifty-seven  dollars  and  eighty  five  cents,  with  interest 
thereon  from  the  1st  day  of  September,  1870,  and  their  costs 

of  the  action.' 

D.  P.,  Attorney -General. 
[Office  address.'] 

State,  City  and  County  or  N.  Y.,  ss.: 

W.  H.  P.,  of  said  city,  being  duly  sworn,  says,  he  is  an 
attorney  and  counsellor  of  the  Supreme  Court,  and  is  em- 
ployed as  assistant  and  associate  with  the  attorney-general 
in  prosecuting  the  demands  mentioned  In  the  foregoing  com- 
plaint, and  hath  read  the  said  complaint ;  that  for  several 
years  last  past  deponent  has  been  engaged  in  investigating 


'  This  complaint  is  from  the  case  of        See,  further,  as  to  this  action,  "Wood 

People  V,  Tweed  (G3  X.  Y.,  302).    The  v.  The  Mayor  (73  N.  Y.,  550),  People 

action  was  brought  under  chapter  49  v.  N.  Y.  and  Manhattan  Beach  R.  Co. 

of  Laws  of   1875.   of  which  section  (84  N.  Y..  565:  afl'g  S.  C,  23  Hun, 

19fi9  of  Code  Civ  Pro.,  is  a  revision.  95),  People  v.  Starkweather  (43  N.  Y., 

The  constitutionality  of  the  act  was  Super.  Ct.,  325),  People  v.  Wood  (121 

affirmed     in    the    above    cited    case,  N.  Y.,  522),  Peoi)le  v.  Coggeshall  (138 

although  the  point  was  not  expressly  id.,  63.')). 
adjudicated.  "See  note  2  to  form  No.  122. 


State  Weits  Generally.  947 

the  matters  alleged  and  stated  and  referred  to  in  said  com- 
plaint, and  has  made  himself  familiar  with  the  relevant 
books,  records  and  documents  in  the  comptroller's  office 
and  in  the  i\ational  Broadway  Bank,  in  said  complaint  re- 
ferred to,  and  that  the  schedules  therein  referred  to  have 
been  examined  by  himself  repeatedly,  and  also  by  de- 
ponent's directions  and  under  deponent's  superintend- 
ence ;  that  deponent  has  diligently  investigated  and  made 
himself  acquainted  with  the  facts  alleged  in  said  complaint 
and  is  so  acquainted  with  the  same ;  that  the  said  com- 
plaint is  true  to  his  own  knowledge,  except  as  to  the  mat- 
ters therein  stated  to  be  alleged  on  information  and  belief, 
and  as  to  those  matters  he  believes  it  to  be  true. 

W.  H.  P. 

[Jurat  as  in  form  No.  46.] 


TITLE  II. 

FORMS  RELATING  TO  SPECIAL  PROCEEDINGS  INSTITUTED  BY 

STATE  AYRIT. 

Article  First. 

FORMS   RELATING  TO   PROVISIONS   APPLICABLE   TO   TWO  OR 
MORE  STATE  AVRITS. 

(Code  Civ.  Pro.,  Ch.  16,  Tit.  2,  Art.  1) 

No.  1051.     Undertaking  on  issuing  habeas  corpus. 


No.  1051. 
Undertaking  to  be  Given  on  Issuing  Habeas  Corpus. 

(Code  Civ.  Pro.,  §  2000.) 

Whereas,  a  writ  of  habeas  corpus  to  bring  up  E.  F.,  a 
prisoner  [to  testify],  before,  etc.  [as  in  writ],  has  been  issued 
l)y  the  Hon.  A.  0.,  a  [justice]  of  the  [Supreme]  Court  \or 

by  the  (Supreme)  Court  {or  county  court  of )  now  in 

session  at,  etc.],  to  the  sheriff  of  tlie  county  of , 

by  which  the  said  sheriff  is  commanded  tliat  he  bring  E.  F., 
now  in  custody  of  him,  the  said  slieriff,  under  and  by  virtue 

of ,  before  the  said  justice  of  the  Siipr<'me  Court 

[or  before  the  said  court ;  or  before  A.  11,  a  icferee  ;  or  ('. 
D.,  a  justice  of  the  jjeace,  etc.],  on  the  application  of  A.  B.: 


948  Forms  Relating  to 

Now,  therefore,  I  {or  we),  G.  H.,  of ,  by  occupa- 
tion a [and  I.  J.,  of ,  by  occupation  a 

],'  do  hereby  jointly  and  severally  undertake,  pur- 
suant to  statute,  to  and  with  M.  N.,  as  such  sheriff,  in  the 

sum  of dollars,'  that  I  \or  we]  will  pay  the  charges 

of  carrying  back  the  said  prisoner  if  he  be  remanded  ;  and 
that  the  prisoner  will  not  escaj^e  by  the  way,  either  in  going 
to,  remaining  at,  or  returning  from,  the  place  to  which  he 
is  to  be  taken. 

Dated ,  18—. 

G.  H. 

[I.  J.J 
In  presence  of . 

[Acknowledgment  or  proof,  justification  and  approval,  as 
in  forms  Nos.  340,  588.] 


Article  Second. 


FORMS    RELATING    TO    THE    WRIT    OF    HABEAS    CORPUS,    TO 
BRING  UP  A  PERSON  TO  TESTIFY 

(Code  Civ.  Pro.,  Cli.  16,  Tit.  1,  Art.  2.) 

•  No.  1052.     Habeas  corpus  to  testify 

1053.     Affidavit  to  procure  habeas  corpus  to  testify. 


No.  1052. 
Habeas  Corpus  to  Testify. 

(Code  Civ.  Pro.,  §2008.) 

The  People  of  the  State  of  New  York  [upon  the  relation  of 

A.  B.']  to  the  Sheriff  of  the  County  of [or  name 

other  officer^  greeting  : 

We  command  jon  that  you  have  the  body  of  K.  L.  de- 
tained in  our  prison  [or  jail]  at ,  under  your  custody, 

as  it  is  said,  under  safe  and  secure  conduct  at  or  before,  etc. 
[as  in  subpcena,  form  No.  357,  to  (*),  substituting  "he"  for 
"you,"  and  then  proceed  as  follows:]     And  immediately 

'  At  least  one  suretj'-      CCode  Civ.  tained  for  a  specific  sum  of  money;  if 

Pro.,  ^  2000.)  not,  it  must  be  one  thousand  dollars, 

*  At  least  twice  the  sum  for  which  (Id. ) 

the  prisoner  is  detained,  if  he  is  de-  '  See  section  1994,  Code  Civ  Pro. 


Habeas  Corpus  to  Testify.  940 

after  the  said  K.  L.  shall  then  and  there  have  given  his 
testimony  before,  etc.,  in  the  said  action  \or  ])roceeding], 
that  you  return  him  to  our  said  prison  [or  jail]  under  safe 
and  secure  conduct  and  have  you  then  and  there  this  vrrit.' 

Witness,  etc.  [teste], 

[L.  s.]  C.  J.,  ClerJc. 

J.  B.,  Attorney. 

[Indorsed.] 

Allowed  this day  of ,  18 —  [upon  the  appli- 
cation of  L.  M.,  attorney-general  of  the  State  of  New  York 

{or  of  P.  F.,  district  attorney  of  the  county  of )]." 

A.  0.,  Judge  [or  Justice],  etc. 


No.  1053. 
Aifidayit  to  Procure  a  Habeas  Corpus  to  Testify, 

(Code  Civ.  Pro.,  §2013.) 

[Title  of  cause.] 
County,  ss.  : 


A.  B. ,  of ,  being  duly  sworn,  says,  that  he  is  the 

plaintiff  [or  defendant]  in  this  action,  and  that  the  same  is 
brought  in  the  [Supreme]  Court  and  is  triable  in  the  county 
of ,  for  [state  particulars]. 

That  the  defense  to  the  same  is  [state  it]. 

That  this  deponent  has  fully  and  fairly  stated  the  case  to 

A.  H.,  his  counsel  in  this  cause,  who  resides  at , 

and  has  also  stated  to  his  said  counsel  the  facts  which  he 
expects  to  prove  by  C.  D.,  as  a  witness  for  deponent  in  this 
cause,  and  who  is  now  a  prisoner  in  the  custody  of  the  sheriff 
of  the  county  of . 

That  the  said  C.  D.  is  a  material  and  necessary  witness 

•  As  to  remanding,  etc. ,  prisoner,  see  of  the  district  attorney  having  charge 
Code  Civ.  Pro.,  §  2013;  as  to  the  seal,  of  the  action  or  special  proceeding,  the 
see  (id.)  §  1992;  as  to  allowance  of  writ,  indorsement  of  the  allowance  must 
see  (id.)  §  1996;  as  to  time  of  return,  state  that  it  was  issued  upon  such  an 
see  (id.)  ^§  1998,  2000;  for  form  of  re-  application.  "(Code  Civ.  Pro.,  t;  19it;5.) 
turn,  see  form  No.  31  and  §§  2013,  2014  See,  further,  as  to  allowance,  i^  1990 
(id.).  (id). 

*  When  the  writ  is  issued  upon  the  As  to  service  of  writ,  see  §§  199D, 
application  of  the  attorney -general,  or  2000,  2003,  Code  Civ.  Pro. 


9r)0  Forms  Relating  to 

for  tliis  deponent  on  the  trial  of  this  cause,  and  that  with- 
out the  benefit  of  liis  testimonj^  he  cannot  safely  proceed 
to  the  trial  of  the  said  cause,  as  he  is  advised  by  liis  said 
counsel,  after  such  statements  were  made  to  him,  and  verily 
believes,  and  that  sucli  trial  is  noticed  for  [state  the  time 
and  court,  etc]. 

That  said   })risoner  is  now  confined  in  the at 

,  in  the  county  of ,  under  a  sentence  for  a 


felony,  to  wit :  for \_or  under  a  sentence  for 

and  not  for  a  felony].' 

[Jurat  as  in  form  No.  46.] 


A.  B. 


Article  Tiiiku. 


FORMS  RELATING  TO  THE  WRIT  OF  HABEAS  CORPUS,  AND 
THE  AVRIT  OF  CERTIORARI,  TO  INQUIRE  INTO  THE  CAUSE 
OF  DETENTION. 

(Code  Civ.  Pro.,  Ch.  16,  Tit.  2,  Art.  3.) 

No.  1054.  Petition  on  application  for  writ  of  habeas  corpus  or  certiorari  to 
inquire  into  cause  of  detention. 

1055.  Writ  of  habeas  corpus  to  inquire  into  the  cause  of  detention. 

1056.  Writ  of  certiorari  to  inquire  into  cause  of  detention. 

1057.  Return  to  writ  of  habeas  corpus  and  certiorari — official. 

1058.  Return  to  writ  of  habeas  corpus  or  certiorari  other  than  official. 

1059.  Attachment  for  not  obeying  writ. 

1060.  Commitment  upon  return  of  warrant. 

1061.  Precept  by  judge  to  bring  before  him  the  prisoner. 

1062.  Order  for  discharge  of  prisoner. 

1063.  Or-ler  remanding  prisoner  under  section  2032  of  Code  Civ.  Pro. 

1064.  Order  discharging  or  bailing  prisoner  in  certain  cases  upon  writ  of 

habeas  corpus. 

1065.  Notice  to  person  interested  in  detention,  etc. 

1066.  Denials  by  the  prisoner  of  return,  etc. 

'The  wiit  is  not  to  issue  to  bring  up  of  Laws  of  1885,  §  1.  By  ch.  946  of 
a  prisoner  sentenced  to  death,  nor  is  it  Laws  of  1895,  amendments  were  made 
to  isfue  to  bring  up  one  contined  under  to  §  2011  of  the  Code  of  Civ.  Pro.,  as 
any  otber  sentence  for  a  felony,  except  indicated  above  by  italics,  such  amend- 
where  the  application  is  made  in  behalf  ments  taking-  effect  Jan.  1,  1896. 
of  the  people  to  bring  him  up  as  a  wit-  For  proceedings  generally  upon  the 
ness  on  the  trial  of  an  indictment,  and  writ,  and  upon  application  therefor, 
then  only  by  and  in  the  discretion  of  see  Code  Civ.  Pro.,  §§  2008-2014.  Of 
a  Justice  of  the  Supreme  Court,  on  such  these  sections  2009  and  2010  were  am- 
notice  to  the  district  attorney  of  the  ended  by  ch.  946  of  Laws  of  1895,  the 
county  whtM-ein  the  prisoner  was  con-  amendments  taking  effect  Jan.  1, 1896. 
victed,  and  upon  such  terms  and  con-  Where  the  attoi-ney-generai  or  dis- 
<litions,  and  under  such  regulations,  trict  attorney  makes  the  application, 
as  the  judge  prescribes.  (Code  Civ.  he  need  not  swear  to  the  advice  of 
Pro.,  §  2011.)  See,  also,  ch.  416  of  counsel,  (Id.,  §  2012.) 
Laws  of  1880,  as  amended  by  ch.  267 


Habeas  Corpus  or  Certiorari  to  Inquire,  etc.    961 

No.  1067.     Order  for  discharge  of  prisoner  or  dismissing  proceedings  where 
certiorari  has  been  issued  on  application  for  habeas  corpus. 

1068.  Order  for  bail  on  return  to  writ  of  certiorari. 

1069.  Recognizance  of  prisoner  for  his  appearance. 

lOTO.  Judge's  certilicate  of  compliance  to  be  made  upon  the  order,  No.  1. 

1071.  Attachment  for  not  obej-ing  final  order  for  discharge. 

1072.  Warrant  to  bring  up  prisoner  about  to  be  removed.  No.  1. 

1073.  WaiTant  to  bring  up  prisoner  about  to  be  removed,  etc..  No.  2. 

1074.  Notice  of  appeal  from  an  order  refusing  to  grant  writ  of  habeas 

corpus  or  certiorari. 

1075.  Order  admitting  prisoner  to  bail  pending  appeal. 

1076.  Recognizance  of  prisoner  on  appeal  from  final  order  dismissing 

proceedings,  etc.,  on  habeas  corpus,  etc. 


No.  1054. 

Petition  on  Application  for  Writ  of  Haljeas  Corpus  or  Cer- 
tiorari to  Inquire  into  Cause  of  Detention. 

(Code  Civ.  Pro.,  §  2019.) 

To  the  Supreme  Court  of  the  State  of  New  York  [or  name 
other  court  or  judged : 

The  petition  of  A.  B,  respectfully  shows,  that  he  is  now- 
imprisoned  \or  restrained  in  his  liberty],  in  the  custody  of 
\or  by  (state  the  officer  or  person  who  imprisons  or  restrains 

him  of  his  liberty)],*  at [state  place  of  confinement, 

if  known,  or,  if  unknown,  state  that  fact],"  and  according 
to  the  best  knowledge  and  belief  of  the  petitioner  for  a 
supposed  criminal  offense,  to  wit  [state  it  {or  state  other 
cause  or  pretence  of  the  imprisonment  or  restraint)]. 

That  a  copy  of  the  mandate,  by  virtue  of  which  such  im- 
prisonment [or  restraint]  is  made,  is  hereto  annexed,  marked 
A  \or  state  :  that  by  reason  of  the  said  petitioner  being  re- 
moved {or  concealed)  before  this  application  a  demand  of  a 
copy  of  the  mandate  could  not  be  made,  or  that  such  copy 
was  demanded  and  the  legal  fees  tliereof  duly  tendered  to 
the  said  (state  officer  or  person  having  the  prisoner  in  his 
custody),  and  that  the  said  copy  was  refused]. 

•  The  party  is  to  be  described,  if  his  sulnli vision   2  of  section   2019,  Code 

name  is  not  known.     (Code  Civ.  Pro.,  Civ.  Pro.,  it  is  fatally  defective,  and 

§  2019,  su])d.  1.)  the  writ  will  be  quashed.     (People  v. 

*If  the  petition   fails  to  state  the  Cowles,  m  How.  Pr.,  287  [Sup.  Ct. 

place  where  the  prisoner  ia  confined,  Sp.  Tin.)].     See,  also,  People  ex  rel. 

or  to  negative  the  matters  Hpecitied  in  Hoyle  v.  OHborne  (6  Civ.  Pro.  R.,299). 


952  FoKMS  Relating  to 

But  if  he  is  not  confined  for  any  sui')posed  offense,  then 
state,  to  tlie  l>est  of  tlie  petitioners  knowledge  and  belief,  for 
wliai  canst'  or  under  what  pretence  he  is  confined,  or  aver, 
'•  that  lie  is  utterly  ignorant  of  the  pretence  under  which  he 
is  confined,"  and  add,  if  the  fact  be  so,  but  he  hath  heard 
or  understood,  :ind  that  according  to  the  best  knowledge 
and  belief  of  tlie  petitioner,  such  pretence  is  as  follows 
[state  it],  and  the  said  petitioner  avers,  that,  to  the  best  of  his 
knowledge  and  belief,  he  is  not  committed  or  detained  by  vir- 
tue of  any  mandate  issued  by  any  court  of  the  United  States 
or  any  judge  thereof  [in  a  case  where  such  courts  or  judges 
have  exclusive  jurisdiction,  under  the  laws  of  the  United 
States,  or  have  accxuired  exclusive  jurisdiction  by  the  com- 
mencement of  legal  proceedings  in  such  a  court],  or  by  viitue 
of  the  final  judgment  or  decree  of  any  competent  tribunal 
of  civil  or  criminal  jurisdiction  or  the  final  order  of  such  a 
tribunal,  made  in  a  special  proceeding,  instituted  for  any 
cause  [other  than  for  the  alleged  contempt  above  men- 
tioned],' or  by  virtue  of  any  execution  issued  upon  such 
judgment,  decree  or  final  order. 

[When  the  application  is  made  to  an  officer  residing  in 
an  adjoining  county  to  the  one  in  wdiicli  the  prisoner  is  de- 
tained, state  the  facts  authorizing  such  application  under 
subdivision  three  of  section  2017.] 

Wherefore  your  petitioner  prays  a  habeas  corpus  [or  cer- 
tiorari] to  discharge  him  from  custody,  as  he  is  advised  by 
counsel,  and  believes  his  imprisonment  to  be  illegal,  in  this 
[state  the  causes]  [or  to  bring  him  up  in  order  to  be  bailed].' 

Dated ,  18—. 

A.  B.  [by  L.  M.] 
County,  55.,- 

A.  B.,  the  above  named  petitioner  [or  L.  M.,  on  behalf  of 
A.  B.,  the  above  named  petitioner],  being  duly  sworn,  says, 
that  he  believes  the  foregoing  petition  to  be  true. 

A.  B. 

[Jurat  as  in  form  No.  46.] 

'  See  section  2016,  Code  Civ.  Pro.,  **  It  is  held  in  People  ix  rel.  Hoyle  v. 

subdivision  2,  and  section  2032,  id.,  Osborne  (supra),  that  the  application 

subdivisions  2  and  3,  and  see  People  of  a  •wife  living  separate  from  her  hus- 

ex  rel.  Hoyle  v.  Osborne  (6  Civ.  Pro.  band  for  a  writ  of  habeas  corpus  to  re- 

R.  [Browne],  299).  move  her  minor  child  from  the  custody 


Habeas  Coepus  or  Certiorari  to  Inquire,  etc.    953 


'  No.  1055. 

Writ  of  Habeas  Corpus  to  Inquire  Into  tlie  Cause  of 
Detention. 

(Code  Civ.  Pro.,  §  2021.) 

The  Peo2:>le  of  tlie  State  of  Neio  York  \on  the  relation  of  E. 
F.],'  to  the  Sheriff  of  etc.  \or  to  A.  B.]  ; 

We  command  you  that  you  have  the  body  of  C.  D.,  by 
you  imprisoned  and  detained,  as  it  is  said,  together  with 
tlie  time  and  cause  of  such  imprisonment  and  detention,  by 
whatsoever  name  the  said  C.  D.  is  called  or  charged,  before 

[the  Supreme  Court,  at  a  special  term  {or,  term  of  the 

Appellate  Division)  thereof  to  be  held, orE.F.,  justice  of  the 

Supreme  Court,  or  otherwise,  as  the  case  may  be],  at , 

on [or  immediately  after  the  receipt  of  this  Avrit],  to 

do  and  receive  what  shall  then  and  there  be  considered  con- 
cerning the  said  CD.,  and  have  you  then  there  this  writ. 

Witness, ,  one  of  the  justices  [or  judges]  of  the 

said  court  [or  county  judge,  or  otherwise,  as  the  case  may 


to  which  it  has  been  legally  coinmitted 
by  its  father,  and  to  have  it  commit- 
ted to  her,  should  be  made  to  the 
court,  and  that  the  writ  must  be  issued 
by  the  court,  and  that  a  judge  at 
chambers  has  no  power  to  issue  the 
\vrit  in  such  a  case,  since  the  I'epeal  of 
subdivision  21  of  section  16  of  the 
judiciary  act  of  1847,  by  chajiter  417 
of  the  Laws  of  1877.  See,  also.  Peo- 
ple ex  rel.  Williams  v.  Corey  (46  Hun, 
409). 

See,  also,  Matter  of  Larson  (96  N.  Y., 
381;  rev'g  S.  C,  31  Hun,  539),  Matter 
of  Moses  (13  Abb.  N.  C,  189),  Matter 
of  Seratino  (66  How.  Pr.,  178),  People 
ex  rel.  Devoe  v.  Kelly  (97  N.  Y.,  212  ; 
afiTg  in  part,  S.  C,  32  Him.  536).  Peo- 
ple ex  rel.  Knowlton  v.  Sadler  (2N.y. 
Crim.  R.,  438),  In  re  Crow  (:50  All). 
Law  Jour.,  210;  S.  C,  19  N.  W.  R., 
713),  Matter  of  Forsyth  (66  How.  Pr., 
180),  Peo])le  ex  rel.  Mclntyre  v.  Hurl- 
but  (67  id.,  362),  People  v.  Gray  (67 
id.,  4.'56),  Peoj)le  ex  i-el.  Evans  v.  Mc- 
Ewen  (67  id.,  H).')),  Matter  of  Lewinnki 
(66  id.,  175).  P(!(.ple  ex  rel.  McDonald 
V.  Keeler  (32  Hun,  56:^),  People  ex  rel. 
Tiiliy  V.  Davidson  (67  How.,  416), 
Matter  of  Dixon  (11  Abb.  N.  C,  IIH), 
Matter  of  Wright  (29  Hun,  357),  Mat- 
ter of  Laurent  (11   Abb.   N.   C,   I'-'O), 


People  ex  I'el.  Trainor  v.  Baker  (89 
N.  Y.,  460),  People  ex  rel.  Sherwin  v. 
Mead  (28  Hun,  227;  aftM  92  N.  Y., 
415;  see,  also,  22  Week.  Dig.,  404), 
Peojile  V.  Donohue  (14  Hun,  133), 
People  ex  rel.  Frey  v.  Warden  of  N. 
Y.  County  Jail  (100  N.  Y.,  20,  rev'g 
S.  C,  34  Hun,  393),  Matter  of  Fran- 
cesca  (66  How.  Pr.,  178),  People  ex 
rel.  Clarke  v.  Clarke  (64  id.,  7),  Peo- 
ple ex  rel.  Van  Heck  v.  Catholic  Pro- 
tectoiy  (38  Hun,  127,  aff'd  101  N.  Y.. 
195)),  People  ex  rel.  Pickard  v.  Sheriff 
of  Chautauqua  (U  Civ.  Pro.  R..  172), 
People  ex  rel.  McCoy  v.  Warden  of 
City  Prison  (3  Crim.  R.,  370),  People 
ex  rel.  Perkerson  v.  Sisters  of  St. 
Dominick  (34  Hun,  463),  In  re  Diss 
Debar  (3  N.  Y.  Supp.,  667),  People  ex 
rel.  Society  for  Prevention  of  Cruelty 
to  Children  v.  Gilmore  (26  Hun,  1, 
rev'd  in  jiart ;  S.  C,  88  N.  Y.,  626), 
Anonymous  (18  Abb.  N.  C.,216),  Peo- 
ple ex  rel.  Martin  v.  Walters  (15  id., 
461),  People  ex  rel.  Parr  v.  Parr  (121 
N.  Y.,  67.9,  aff'g  8.  C,  49  Hun,  473). 
People  ex  rel.  Brown  v.  Carpenter 
(32  State  Rep.,  322),  Ex  parte  Stanley 
(25  Tex.  Ap.,  372),  Cooper  v.  People 
(0  L.  R.  a.,  430),  Matter  of  Simon  (128 
N.  Y.,  625,  rev'g  8.  C,  37  State  Rep., 
48),    Matter  of  McFarland   (59  Hun, 


Habeas  Corpus  or  Certiorari  to  Inquire,  etc.     953a 


304),  People  ex  rel.  Danziger  v.  P.  E. 
House  of  Mercy  (128  N.  Y.,  180),  Peo- 
ple ex  rel.  Pruyne  v.  Walts  (122  id., 
238),  Ex  parte  Burrus  (136  U.  S.,  586), 
Ex  parte  Cox  (32  Pac.  R.,  1893),  Mat- 
ter of  Taylor  (8  Misc.,  159),  People  ex 
rel.  Young-  v.  Stout  (81  Hun,  336), 
People  ex  rel.  Gunn  v.  Webster  (75 
id.,  278),  People  ex  rel.  O'Brien  v. 
Woodworth  (78  id.,  586),  Winne  v. 
Houghtaling  (84  id.,  166),  Matter  of 
Henry  (13  Misc.,  34),  People  ex  rel. 
Peck  V.  Schartz  (13  id.,  563),  People 
ex  rel.  McLoughlin  v.  Wilson  (88  Hun, 
258),  and  sections  2015  to  2066,  Code 
Civ.  Pro.,  for  recent  cases  and  the  stat- 
utes relating  to  this  writ  and  proceed- 
ings thereupon. 


A  justice  of  the  Supreme  Court  has 
power,  under  section  2017  of  Code 
Civ.  Pro.,  to  grant  a  writ  of  habeas 
corpus  directed  to  any  person  in  any 
part  of  the  State.  (People  ex  rel. 
Clarke  v.  Clarke,  64  How.  Pr.,  7.) 

^The  forms  of  writs  of  habeas  cor- 
pus and  certiorari  are  verbatim,  the 
ones  prescribed  by  sections  2021,  2022 
of  Code  Civ.  Pro.,  as  amended  by 
chap.  946  of  Laws  of  1895,  taking 
effect  January  1,  1896,  except  that  the 
words  "  on  the  relation  of  E.  F.,"  are 
inserted  and  the  seal  is  affixed,  both 
of  which  changes  are,  it  seems,  neces- 
sary, under  sections  1992,  1994  (id). 


964  Forms  Relating  to 

be],  the day  of ,  in  the  year  eighteen  hun- 
dred and ■. 

[L.  s.]  A.  O.,  Justice  [or  Judge],  etc. 

M.  I^.,  Attorney  for . 

[Office  address.'] 
[Allowance  to  be  indorsed  as  in  form  No.  1052.'] 


No.  1056. 
Writ  of  Certiorari  to  Inquire  into  Cause  of  Detention. 

(Code  Civ.  Pro.,  §  2022.) 

Tlie  People  of  tlie  State  of  New  York  [on  the  relation  of  E. 
F.]/  to  the  Sheriff  of  etc.  [or  to  A.  B.]  ; 

We  command  yon  that  you  certify  fully  and  Jit  large  to 

[the  Supreme  Court,  at  a  special  term  {or  term  of  the 

Appellate  Division)  thereof,  to  be  held,  or  E.F.,  justice  of  the 

Supreme  Court,  or  otherwise,  as  the  case  may  be],  at , 

on [or  immediately  after  the  receipt  of  this  writ],  the 

day  and  cause  of  the  imprisonment  of  C.  D.,  by  you  de- 
tained, as  it  is  said,  by  whatsoever  name  the  said  C.  D.  is 
called  or  charged,  and  have  you  then  there  this  writ. 

Witness,  etc.,  as  in  form  No.  1055. 

[l.  s.]  [Signatures,  etc.,  as  in  form  No.  1055.] 

[Allowance  to  be  indorsed  as  in  form  No.  1055.^*] 

*  The  signature  of  the  attorney  is  re-  (Code   Civ.    Pro.,    §   2027.)     And  see 

quired  by  section  24  (id.).     As  to  office  form  No.  1057.     As  to  proceedings  on 

address,  see  note  2  to  foi-ra  No.  Vl'l.  such    a   return,    see  Code  Civ.    Pi'O., 

For  returns  by  sheriff  to  the  writs  §  2040.  See  also  as  to  return,  People 
of  habeas  corpus  and  certiorari,  see  ex  rel.  Mooney  v.  Walsh  (21  Abb.  N. 
form  No.  31,  and  note  2  to  that  form;  C. ,  299),  People  ex  rel.  Evans  v.  Me- 
an d  as  to  where  the  writ  may  V)e  made  Ewan  (67  How.  Pr.,  105),  Pe^  pie  ex 
returnable  in  case  the  application  rel.  Slatzkata  v.  Baker  (19  State  Rep., 
therefor  is  made  to  the  Supreme  Court  485),  People  ex  rel.  Clark  v.  Grant 
or  a  justice  thereof,  in  a  county  other  (111  N.  Y.,  584),  People  ex  rel. 
than  that  where  the  person  is  impris-  Trainor  v.  Baker  (89  id.,  460),  People 
oned  or  confined,  see  section  2023  (id.),  ex  rel.  Sherwin  v.  Mead  (28  Hun,  227). 

The  return  must  be  signed  by  the  The  writ  of  habeas  corpus  or  of  cer- 

person  making  it,  and  unless  he  is  a  tiorari  is  not  to  be  disobeyed  for  any 

sworn  public  officer,  and  makes  his  re-  defect  in  form,  and  jiarticularly  in  the 

turn  in  his  official  capacity,  it  must  be  cases  specified  in   section  2024,  Code 

verified  by  his  oath.     (See  form  No.  Civ.  Pro.  (id.,  §2024). 

1058.)  1  See  note  2  to  form  No.  122. 

If  the  body  of  the  prisoner  is  not  '^See  note  2  to  form  No.  10.52,  as  to 

produced,  when  in  the  custody  of  the  allowance. 

officer   or   other    person,    the    return  ^See  note  1  to  form  No.  1055. 

must  state  that  the  prisonei-  is  so  sick  *  See  note  2  to  form  No.  1052,  as  to 

or  infirm  that  the  production  of  him  allowance, 
would    endanger   hia   life   or  health- 


Habeais  C0KPU6  OK  Cektiokaki  to  Ij^quike,  etc.    955 

No.  1057. 
Eeturu  to  Writ  of  Habeas  Corpus  and  Certiorari— Official. 

(Code  Civ.  Pro.,  g  20.6.) 

See  form  No.  31  and  notes  thereto,  the  words  "the  origi- 
nal of  which  I  also  herewith  produce,"  have  been  sometimes 
inserted  in  the  return  after  the  words  "1  transmit  to  you," 
in  cases  Avhere  the  prisoner  is  detained  by  virtue  of  a  man- 
date or  other  written  authority.  But  these  words  are  not 
considered  to  be  properly  any  part  of  the  return,  although 
the  original  writ  is  required  to  be  produced  and  exhibited 
by  section  2026,  Code  Civil  Procedure,  subdivision  2. 

By  section  2027,  Code  Civil  Procedure,  if  the  body  of  the 
jDrisoner  is  not  produced,  it  is  required  to  be  stated  in  the 
return  to  a  writ  of  habeas  corpus,  "  that  the  prisoner  is  so 
sick  or  infirm  that  the  production  of  him  would  endanger 
his  life  or  his  health." 


No.  1058. 

Return  to  Writ  of  Hal>eas  Corpus  or  Certiorari  Other  than 

Official. 

(Code  Civ.  Pro.,  §2026.) 

The  return  of  R.  A.  P.  to  the  writ  of  habeas  corpus  hereto 
annexed,  I  do  hereby  certify  and  return  to  Hon.  C.  E.  P., 
a  justice  of  the  Supreme  Court,  that  I  hold  the  said  T.  D. 
under  and  by  virtue  of  a  warrant  issued  by  the  governor 
of  the  State  of  New  York  for  the  arrest  of  the  said  T.  D., 
under  the  name  of  J.  D.,  and  for  his  surrender  to  the 
authorities  of  the  State  of  Massachusetts  by  virtue  of  a 
requisition  from  the  governor  of  that  State,  a  copy  of  which 
warrant  is  hereto  annexed,  the  original  of  which  I  hold  in 
my  possession  [or  state  other  authority  for  the  detention]. 

All  of  which  I  certify,  and  have  here  the  body  of  the  said 
T.  D.,  as  by  the  said  writ  I  am  commanded. 

R.  A.  P. 

Dated ,  18—. 

State  of  New  York,  ] 
County,       \  ^^^' 


R.  A.  P.,  being  duly  sworn,  says,  that  the  foregoing  re- 


956  Forms  Relating  to 

turn  is  true  to  the  best  of  liis  knowledge,  information  and 

belief. 

R.  A.  P. 
[Jurat  as  in  form  No.  46.] 


No.  1059. 
Attachment  for  not  Obeying  Writ. 

(Code  Civ.  Pro.,  §  2028.) 

[Title  of  proceeding.] 

It  appearing  to  me,  on  oath,  that ,  to  whom  a 

writ  of  habeas  corpus  [or  certiorari]  was  directed,  and  upon 
whom  the  same  has  been  duly  served,  commanding  him  to 
bring  before  me  A.  B.,  in  the  said  writ  named,  has  neglected 
[or  refused]  to  obey  the  same  according  to  the  command 
thereof,  by  not  producing  the  said  A.  B.  before  me,  nor  by 
making  a  return  to  such  writ  within  the  time  limited  by 
law  [*],  and  no  sufficient  cause  having  been  shown  for  such 
neglect  [or  refusal] : 

Therefore  [f]  the  sheriff  of  any  county  where  the  said 

may  be  found   [or  the  coroner  of  the  county  of 

;  or  G.  H.,  who  is  hereby  specially  appointed  and 

designated  to  execute  this  warrant],'  is  hereby  commanded, 
in  the  name  of  the  people  of  the  State  of  New  York,  forth- 
with to  apprehend  the  said and  bring  him  before 

me,  at,  etc. 

Given  under  my  hand  and  seal  at,  etc.,  on,  etc. 

[l.  s.]  [Signature  of  judge.] 

J.  B.,  Attorney  for . 

[Office  address.'] 


No.  1060. 
Commitment  upon  Return  of  Warrant. 

(Code  Civ.  Pro.,  §  2028.) 

[Title  of  proceeding.] 

A.  B.  [sheriff,  etc.]  having  been  brought  before  me,  on  a 

1  If  the  delinquent  i'^  a  sheriff,  the     oner  of  his  county,  or  to  a  particular 
warrant  must  be  directed  to  any  cor-    person  specially  appointed  to  execute 


Habeas  Corpus  or  Certiorari  to  Inquire,  etc.    967 

warrant  issued  by  me,  stating  [recite  the  warrant],  I  do, 
therefore,  in  the  name  of  the  people  of  the  State  of  New 

York,  command  the  sheriff  of county  [or  coroner, 

or  other  person,  to  be  named  therein],  forthwith  to  conv^ey 

the  said to  the  jail  of  the  said  county  of , 

and  there  commit  him  to  close  custody  in  such  jail,  without 
being  allowed  the  liberties  thereof,  there  to  remain  until  he 
shall  make  return  to  the  writ  in  such  warrant  mentioned 
[and  until  he  shall  comply  with  my  order  (state  what  the 
order  is,  in  relation  to  the  person  for  whose  relief  the  writ 
of  habeas  corpus  or  certiorari  was  issued)],  and  shall  com- 
ply with  any  other  order  which  may  be  made  by  me  in  re- 
lation to  the  said  [name  the  person  for  whose  relief  the  writ 
was  issued],  and  the  jailor  is  commanded  to  receive  and 
keep  him  accordingly, 

Given  under  my  hand  and  seal  at,  etc.,  on,  etc. 

[l.  s.]  [Signature  of  judge.] 

M.  N.,  Attorney  for . 


[Office  address.'] 


No.  1061. 
Precept  by  Judge  to  Bring  before  Him  the  Prisoner. 

(Code  Civ.  Pro.,  §  2029.) 

As  in  form  No.  1059  to  [^],  and  from  thence  as  follows : 
And  whereas,  I  have  issued  [or  am  about  to  issue  at  the 
same  time  with  this  precept],  a  warrant  of  attachment,  pur- 
suant to  law,  to ,  commanding  him  forthwith  to 

apprehend  the  said  A.  B.  and  bring  him  before  me. 

I  do  therefore  command  the  sheriff  of county 

[or  name  other  officer  or  person  to  whom  the  warrant  of 
attachment  is  directed]  fortliwith  to  bring  before  me  the 
said  A.  B.,  at,  etc.  [who  shall  thereafter  remain  in  the  cus- 
tody of  the  said  (name  officer  or  jDerson  executing  the  pre- 
cept), until  discharged,  bailed  or  remanded,  as  I  may 
direct].* 


the  warrant  and  designated  therein,  he  proper,  to  insert  this  clause  in  hrack- 

(Code  Civ   Pro.,  §2028.)  ets,  which   is  the  oirect  given   to  the 

»  See  note  2  to  form  No.  122.  pn-ccpt  by  section  2029,  Code  Civ  Pro. 

*  It  may  ixoi  be  nccesHary,  hut  will 


958  FOKMR    HELATIXCr   TO 

Given  under  my  liand  and  seal  at,  etc.,  on,  etc. 

[Signature  of  judge.} 

L.  F.,  x\ttorueii for . 

[Office  address.'] 


No.  1062. 
Order  for  Discharge  of  Prisoner. 

(Code  Civ.  Pro.,  §  2031.) 

[Title  of  proceeding.] 

It  appearing  upon  the  return  of  the  writ  of  habeas  corpus 
\or  certiorari]  allowed  by  me  that  A.  B.  is  imprisoned  [con- 
fined or  restrained]  by  [name  of  officer  or  person  by  whom 
he  is  held],  and  no  lawful  cause  for  the  said  imprisonment 
\or  restraint]  of  said  A.  B.,  or  for  the  continuance  thereof 
having  been  shown,  I  do  therefore  order  and  direct  the  said 

forthwith  to  discharge  the  said  A.  B.  from  his 

custody. 

Given  under  my  hand  at,  etc.,  on,  etc.* 

[Signature  of  judge,  etc.] 


No.  1063. 

Order  Remanding  Prisoner  under  Section  2032  of  Code 
Civil  Procedure. 

(Code  Civ.  Pro.,  §2032.) 

[Title  of  proceeding.] 

It  having  appeared  upon  the  return  of  the  writ  of  habeas 
corpus  \or  certiorari]  allowed  by  me  that  A.  B.,  upon  whose 
application  the  said  writ  was  issued,  is  detained  in  custody 

by ,  by  virtue  of  a  mandate  issued  by  a  court  {or 

judge]  of  the  United  States,  in  a  case  where  such  courts  \or 
judges]  have  exclusive  jurisdiction  \or  in  like  manner  recite 
other  cause  of  detention  under  section  2032  of  Code  Civ. 


•  See  note  2  to  form  No.  122.  vice  of  final  order  to  discharge  pris- 

*  By  section  2048,  Code  Civ.  Pro.,     oner  contained  in  that  section. 

the  "writ  of  discharge    is    abolished.         For  cases  in  which  a  prisoner  dis- 
See,  further,  the  provisions  as  to  ser-    charged  may  and  may  not  be  re-im- 
prisoned, see  Code  Civ.  Pro.,  §  2050. 


Habeas  Corpus  ok  Certiorari  to  Inquir'E,  etc.    959 

Pro.],  and  that  the  time  for  which  he  may  legally  be  so 
detained  has  not  expired  : 

I  do  hereby  order,  that  the  said  A.  B.  be  and  he  is  hereby 

remanded  to  the  custody  of  the  said  under  said 

mandate. 

Dated  at ,  on  the day  of ,  18 — . 

[Signature  of  judge.] 


No.  1064. 


Order  Discharging  or  Bailing  Prisoner  in  Certain  Cases 
upon  Writ  of  Habeas  Corpus. 

(Code  Civ.  Pro.,  §  2035.) 

[Title  of  cause.] 

It  appearing  on  the  return  of  the  writ  of  habeas  corpus, 
heretofore  allowed  by  me,  that  A.  B  ,  upon  whose  applica- 
tion said  writ  was  allowed,  has  been  legally  committed  for 

a  criminal  offense,  to  wit :  for [o?'  it  appearing  on 

the  return,  etc.,  by  the  testimony  offered  wiih  the  return 
{or  upon  the  hearing  of  the  above  entitled  matter),  that 

A.  B.  is  guilty  of  a  criminal  offense,  to  wit :  of ,  but 

that  the  commitment  therefor  is  irregularl  [and  due  notice 
of  application  for  the  order  having  been  given  to  A.  B.  (dis- 
trict attorney  of county)]  ;  now,  after  hearing,  etc.: 

I  do  hereby  order,  that  said  A.  B.  [*]  be  discharged  from 

custody  bj^  the  sheriff  of county,  ui^on  his  giving 

bail,  as  required  by  law,  in  the  sum  of dollars  for 

his  appearance,  at,  etc.  [specifying  the  court  and  the  term 
thereof].* 

[Or  as  above  to  (*)  and  from  thence  as  follows  :  His  case 
not  being  bailable,  be  remanded  to  the  custody  {or  placed 

under  the  restraint)  of  the  sheriff  of county  {or 

name  other  officer  or  i)erson  in  whose  custody  he  is,  or  who 
is  entitled  to  such  custody).'] 


Dated ,  18—. 


[Signature  of  judge.] 


'Where  bail  is  given  pursuant  to  an  for  which  see  sections  2045,  2046,  2047 

order   made  as  presci-ibed  in  section  (id.)     Said  section  2046  wjis  amended 

2035,  Code  Civ.  Pro.,  the  proceeding's  by  ch.  946  of  Laws  of  1895,    taking 

are  the  tsame  as  upon  the  return  to  a  effect  Jan.  1,  1896,  q.  v. 
writ   of  certiorari,  where    it  ajjpears         '  Ah  to  these  directions  for  custody 

that  the  prisoner  is  entitled  to  be  bailed,  of  a  prisoner  who  is  not  entitled  io  his 


960  Forms  Kelating  to 

No.  1065. 
Notice  to  Person  Interested  in  Detention,  etc. 

(Code  Civ  Pro.,  §  2038.) 

[Title  of  proceeding.] 

Sir — You  will  i)lease  take  notice,  that  a  writ  of  habeas 
corpus  [or  of  certiorari]  has  been  allowed  by  me  \or  by  Hon. 
A.  O.,  judge  {or  justice),  etc.,  returnable  at,  etc.,  on,  etc.,  to 
bring  before  nie  {or  before  said  judge,  etc.),  the  body  of  A. 
B.,  conlined  in  (state  the  place)  by  (state  wliom)]  [and  that 

the  hearing  thereupon  has  been  adjourned  to  the day 

of ,  18 — ,  at,  etc.,  before  nie  {or  before  said  judge, 

etc.)]  [said  w^rit  was  allowed  upon  the  affidavit,  with  a  cojDy 
of  wliich  you  are  herewith  served].' 

Dated ,  18—. 

[Signature  of  judge"  {or  of  attorney  for  applicant).] 
•    [Office  address  of  attorney.] 

To  G,  H.'  [^District  Attorney  of  the  county  of ]. 


No.  1066. 

Order  for  Discharge  of  Prisoner  or  Dismissing  Proceed- 
ings wliere  Certiorari  has  been  Issued  on  Application 
for  Habeas  Corpus. 

(Code  Civ.  Pro.,  §  2043.) 

[Title  of  proceeding.] 

It  appearing  upon  the  return  to  the  wait  of  certiorari 
heretofore  allowed  by  me,  upon  the  application  of  A.  B. 
for  a  wTit  of  habeas  corpus  to  inquire  into  the  cause  of  his 

detention  by ,  that  the  said  A.  B.  is  [*]  unlawfully 

imprisoned  {or  restrained  in  his  liberty]  by  said : 

discharge,  and  is  not  bailed,  see  Code  be  given  by  the  judge,  who  may  also 

Civ.  Pro.,  §  2036.  direct  the  manner  of  the  service. 

*  It  appears  not  to  have  been  usual,  '  For  the  purpose  of  an  appeal,  the 
but  seems  proper  that  a  copy  of  the  person  to  whom  the  notice  is  given 
affidavit  should  be  served  with  the  becomes  a  party  to  the  special  pro- 
notice,  ceeding.     (Code   Civ.    Pro.,   §    2038.) 

'If  the  notice  given  is  a  full  eight  See,  also,  People   ex  rel.  Navagh   v. 

days' notice  required  by  the  statute,  it  Frink  (41  Hun,  188),  People  v.  Carter 

may,  it  would  seem,  be  given  either  (48  id.,  165),  People  ex  rel.  Brush  v. 

by  the  judge  or  the  attorney;  but,  if  Brown  (103  N.  Y.,  684). 
the  time  is  shortened,  the  notice  should 


Habeas  Corpus  or  Certiorari  to  Inquire,  etc.    961 

And  the  said  relator  avers  : 

First.  That,  etc. 

Second.  That,  etc. 

Tldrd.  The  said  relator  further  avers,  for  the  reasons 
aforesaid,  that  he  is  held  in  custody  and  restrained  of  his 
liberty  without  due,  proper  and  sufficient  process  of  law 
therefor. 

Wherefore  the  said  relator  respectfully  prays  your  honor 
that  he  may  be  discharged  from  the  custody  of  the  said  de- 
fendant and  be  permitted  to  depart  without  delay. 

T.  D. 

Couxty  of  W ,  ) 

Town  of ,       j 

T.  D.,  being  duly  sworn,  saith,  that  the  foregoing  traverse 

is  true  to  the  best  of  his  knowledge,  information  and  belief. 

T.  D. 
[Jurat  aa  in  form  No.  46.] 


No.  1067. 

Order  for  Discharge  of  Prisoner  or  Dismissing  Proceed- 
ings where  Certiorari  has  been  Issued  on  Application 
for  Habeas  Corpus. 

(Code  Civ.  Pro.,  §2043.) 

[Title  of  proceeding.] 

It  appearing  upon  the  return  to  the  writ  of  certiorari 
heretofore  allowed  by  me,  upon  the  application  of  A.  B. 
for  a  writ  of  habeas  corpus  to  inquire  into  the  cause  of  his 

detention  by ,  that  the  said  A.  B.  is  [*]  unlawfully 

imprisoned  \or  restrained  in  his  liberty]  by  said : 

I  do  hereby  order,  that  the  said  A.  B.  be  discharged  forth- 
with by  the  said from  his  custody. 

\0r  as  above  to  (*),  and  from  thence  as  follows  :  Lawfully 

imprisoned  {or  detained)  by ,  and  is  not  entitled  to 

b(^  bailed.  I  do  hereby  dismiss  the  proceedings  upon  such 
application.] 

Bated  at ,  on  the day  of ,  18 — . 

rSignature  of  judge.] 
121 


962  Fomrs  E-ELATiisra  to 

No.  1068. 
Order  for  Bail  on  lieturn  to  Writ  of  Certiorari. 

(Code  Civ.  Pro  ,§  2045  ) 

[Title  of  proceeding.] 

It  njipearing  iqion  the  return  of  the  writ  of  certiorari, 
heretofore  allowed  by  me,  that  A.  B.,  upon  whose  applica- 
tion said  writ  was  allowed,  is  entitled  to  be  bailed : 

I  do  hereby  order  that  said  A.  B.  be  discharged  from 

custody  by ,  upon  his  giving  bail  as  required  by 

law  in  the  sum  of dollars  for  his  appearance  at, 

etc.  [specifying  the  court  and  the  term  thereof]. 

Dated ,  18—. 

A.  0.,  JudgCy  etc. 

No.  1069. 
Recognizance  of  Prisoner  for  His  Appearance. 

(Code  Civ.  Pro.,  §  2046.) 

State  of  New  York,  ) 
County  of ,      (  ^^' ' 

Be  it  remembered,  that  on  this day  of '■ — , 


18 — ,  A.  B.,  of  the of .  in  said  county,  and 

C.  D.  of  the  same  place,  banker,  and  E.  F.  of  the  same 
place,  merchant,  personally  came  before  A.  O.,  a  justice  of 
the  Supreme  Court  of  the  State  of  New  York,  and  jointly 
and  severally  acknowledged  themselves  to  be  indebted  to 

the  people  of  the  State  of  New  York  in  the  sum  of 

dollars,  to  be  levied  of  their  respective  goods  and  chattels, 
lands  and  tenements,  to  the  use  of  the  said  people,  if  de- 
fault shall  be  made  in  the  conditions  following  :  [*] 

Whereas,  the  above  named  A.  B.  is  in  the  custody  of  the 

sherilf  of  the  said  county  of ,  under  a  commitment 

from  M.  N.,  a  justice  of  the  peace  for  the  town  of , 

in  said  county,  from  which  commitment  it  appears  that  the 
said  A,  B.  is  charged  with  the  crime  of  [naming  it],  com- 
mitted within  said  county  \or  otherwise,  according  to  the 
fact] ;  and, 

Whereas,  an  order  was  made  by  Hon.  R.  W.  P.,  a  justice 
of  the  Supreme  Court,  dated ,  18 — ,  directing  the 


Habeas  Coepus  or  Certioraei  to  Inquire,  etc.    963 

discharge  of  said  A.  B.,  iij)on  bail  being  given  hj  him  in 
the  sum  hereinafter  mentioned,  for  his  appearance  at  the 
term  of  the  court  hereinafter  mentioned,  as  required  by  law : 
Now,  therefore,  the  condition  of  this  recognizance  is  such, 
that  if  tlie  said  A.  B.  shall  personally  appear  at  the  next 

court  of ,  to  be  held  in  and  for  said  county  of 

,  then  and  there  to  answer  to  an  indictment  to  be 

preferred  against  him  for  the  said  offense,  and  further 
to  do  and  receive  what  shall,  by  the  said  court,  be  then 
and  there  enjoined  upon  him,  and  shall  not  depart  the  said 
court  without  leave,  then  this  recognizance  to  be  void ; 
otherwise  to  remain  in  full  force  and  virtue.* 

A.  B.  [L.  s.] 
C.  D.  [L.  s.] 
E.  F.     [L.  s.] 

Subscribed  and  acknowledged  before  me,  the  day  and 
year  tirst  above  written,  by  [A.  B.]*  C.  D,  and  E.  F. 

A.  O.,  Judge,  etc. 
State  of  N'ew  York,  ] 
•  County,       f    ^" 

C.  T>.  and  E.  F.  being  severally  duly  sworn,  each  for  him- 
self deposes  and  says,  that  he  is  one  of  the  sureties  named 
in  the  foregoing  recognizance  ;  that  he  is  a  resident  and 

householder  of  the  county  of ,  and  is  worth  the 

sum  of dollars '  over  and  above  all  demands  against 

him. 

CD. 
E.  F. 

[Jurat  as  in  form  "No.  340.] 

[Approval  as  in  form  No.  340.] 


'  It  was  held  in  People  ex  rel.  Sher-  *  It  is  not  necessary  that  the  prisoner 
■win  V.  Mead  (64  How.  Pr.,  252),  that  an  should  appear  in  person  before  the 
appeal  bond  given  under  section  2062  judge  to  acknowledge  the  recogniz- 
of  Code  Civ.  Pro.,  the  form  of  which  ance;  but  it  may  be  acknowledged  by 
as  regards  the  party's  executing  it,  is  the  prisoner,  and  certified  in  like  man- 
to  be  like  the  recognizance  required  by  ner  as  a  deed  to  be  recorded  in  the 
section  2046,  Code  Civ.  Pro.,  must  be  county.  (Code  Civ.  Pro.,  g  2046.) 
executed  by  tJie  relator  personally  '  Twice  the  sum  in  which  he  is  ro 
•within  the  jurisdiction  of  the  court,  quired  to  be  bound. 


964  Forms  Relating  to 

No.  1070. 

Judge's  Certificate  of  Compliance  to  be  Made  upon  tlio 
Order  (No.  10G9). 

(Code  Civ.  Pro.,  §  2047.) 

I.  A.  O.,  judge  [w  justice],  etc.,  do  hereby  certify,  pur- 
suant to  section  2047  of  the  Code  of  Civil  Procedure,  that 
the  witliin  [or  foregcnngj  order  has  been  complied  with  by 
A.  B.,  therein  mentioned,  by  the  giving  of  the  recognizance 

of  said  A.  B.,  with  two  sureties,  in  the  sum  of 

■dollars,  for  his  appearance  as  prescribed  in   said  order; 
which  recognizance  has  been  [this  day]  filed  by  me  with 
the clerk- 
Dated  ,  18—. 

A.  O.,  Justice  [or  Judge],  etc. 


No.  1071. 
Attachment  for  not  Obeying  Final  Order  for  Discharge. 

(Code  Civ.  Pro.,  §  2049.) 

[Title  of  proceeding.] 

It  appearing  to  me  that  the  final  order,  made  by  me  on 

the day  of ,   18 — ,  directing to 

discharge  A.  B.  from  his  custody  has  been  duly  served 

upon  the  said ,  and  that  said has  hitherto 

failed  to  obey  the  said  order  and  has  not  discharged  the 
said  A.  B.  as  thereby  required. 

Therefore,  etc,  [conclude  as  in  form  No.  1059  from  (f)]. 


No.  1072. 
Warrant  to  Bring  up  Prisoner  About  to  be  Removed  (No.  1). 

(Code  Civ.  Pro.,  §  2054.) 

[Title  of  proceeding.] 

To  the  Sheriff  of  the  County  of [or  to  any  Sheriff 

{or  Constable),  or  to  A.  B.]  : 

It  having  appeared  to  me  satisfactorily,  by  proof,  that 
A.  B.  is  held  in  unlaw^ful  confinement  [or  custody]  by 
,  and  that  there  is  good  reason  to  believe  that  he 


Habeas  Corpus  ok  Ceetioeaki  to  Ijstquike,  etc.    965 

■will  be  carried  ont  of  the  State  [or  will  suffer  irreparable 
injury]  before  he  can  be  relieved  by  a  writ  of  habeas  corpus 
or  a  writ  of  certiorari,  to  wit :  that,  etc.  [reciting  tlie  facts] : 

Now,  therefore,  you  are  hereby  commanded  to  take  the 
said  A.  B.,  and  forthwith  to  bring  him  before  me,  to  be 
dealt  with  according  to  law  [and  the  said  proof  being  also 
sufficient  to  justify  the  arrest  of  the  said  C.  D.  as  for  a 
criminal  offense,  to  wit  (stating  offense),  committed  by  said 
C.  D.,  in  the  taking  and  detaining  said  A.  B.,  I  do  further 
direct  you  to  arrest  the  said  C.  D.  for  the  said  offense].' 

Witness  my  hand  this day  of ,  18 — , 

at,  etc. 


M.  N".,  Attorney  for  — 
[Office  address.'] 


[Signature  of  judge.'] 


No.  1073. 

Warrant  to  Bring  up  Prisoner  about  to  be  Removed,  etc. 

(No.  2). 

(Code  Civ.  Pro.,  §  2054.) 

State  of  New  York, 


City  and  County  of  New  York,  f 

To  the  Sheriff  of  the  city  and  county  of  {New  York  and 
his  Deputies  ;  to  the  Superintendent  of  the  Municipal 
Police  of  the  city  of  New  York,  and  to  all  the  Captains 
and  Officers  of  said  Municipal  Police,  and  to  any  Con- 
stable of  the  said  city'\ : 

Whereas,  E.  F.  J.,  superintendent  of  "The  New  York 
Society  for  the  Prevention  of  Cruelty  to  Children,"  a  cor- 
poration duly  incorporated  under  and  in  pursuance  of  the 


'See  section  2055,  Code  Civ.  Pro.  be   regarded  as  holding  the  child  in 
'If  the  warrant  is  issued  by  a  court,  illegal  confinement  within  the   mean- 
it  must  be  under  the  seal  thereof ;  if  ing   of  this   section.     (People  v.  Gil- 
by  a  judge,  it  must  be  under  his  hand,  more,  26  Hun,  ]  ;  aff'd,  except  as  to 
(Code  Civ.  Pro.,  §  2054.)  costs,  8.  C.-,  88  N.  Y.,  625.) 

QucBre,  whether  a  parent,  guardian  For  proceedings  under  the  warrant, 

or  other  person,  having  lawful  custody  see  sections  2056,  2057,  Code  Civ.  Pro., 

of  an  infant  child,  although  using  such  and  see,  also.  People  ex  rel.  Navagh 

child,  or  permitting  it  to  be  used  for  a  v.  Fnink  (41  Hun,  188),   People  ex  rel. 

I)Urpo8e  forbidden  by  the  act  to  pre-  Brush  v.  Bi-owii  (103  N.  Y.,  684). 

vent   and    jjuninh  wrongs  to  children  ^See  note  2  to  form  No.  122. 
(Laws  of  1876,  ch.  122),  can  properly 


966  Forms  Relating  to 

laws  of  tliis  State,  has  applied  to  me  for  a  warrant  to  take 
a  certain  child  called  "Little  Bob,"  or  "Le  Petit  Bob," 
alleged  to  be  illegally  confined  b}^  and  in  the  cnstody  of 
"\V,  M.  J),  at  and  within  the  premises  No,  72  East  Fourth 
street,  in  the  city  and  county  of  New  York ;  and, 

AVhereas,  it  appears  from  the  proofs  before  me  that,  etc- 
[setting  forth  particulars] ;  from  which  facts  it  satisfactorily 
appears  to  me  that  the  said  child,  ''Little  Bob,"  or  '"Le 
Petit  Bob,"  is  held  in  illegal  confinement  and  custody  by 
the  said  W.  M.  D.,  and  that  there  is  good  reason  to  believe 
that  said  child  will  be  carried  out  of  the  State  by  or  will 
suffer  some  irreparable  injury  at  the  hands  of  the  said  W. 
M.  D.  before  such  child  can  be  relieved  by  the  issuing  of  a 
habeas  corpus  or  certiorari. 

And  the  facts  further  appearing  to  me  sufficient  to  justify 
the  arrest  of  the  said  W.  M.  D.,  having  such  child  in  his 
custody,  as  for  a  criminal  offense  committed  in  the  taking 
and  detaining  of  such  child. 

These  are,  therefore,  in  the  name  of  the  people  of  the 
State  of  New  York,  to  authorize  and  command  you  im- 
mediately to  take  the  said  child,  "Little  Bob,"  or  "Le 
Petit  Bob,"  and,  also,  to  arrest  the  said  W.  M.  D.,  and 
bring  them,  and  each  of  them,  before  me  without  delay,  to 
be  dealt  with  according  to  law. 

Given  under  my  hand  [and  seal]  at  the  city  of  New  York, 
this  9th  day  of  October,  1879.' 

[l.  s.'  C.  D.,  Justice,  etc. 

No.  1074. 

Notice  of  Appeal  from  an  Order  Refusing  to  Grant  Writ  of 
Habeas  Corpus  or  Certiorari. 

(Code  Civ.  Pro.,  §  2058.) 

See  general  notice  of  appeal  from  order  in  special  pro- 
ceeding, form  No.  552,  and  see  note  1  to  that  form,  as  to 
provisions  applicable  to  such  appeals  and  forms  therefor.' 

'  Thi.s  form  of  warrant  is  substanti-  by  a  judge  it  must  be  under  his  hand, 

ally  the  one  used  in  People  v.  Gilmore  (Code  Civ.  Pro.,  §  2054.) 

(88  X.  Y.,  626).  See,  also,  notes  to  last  form,  No.  1072. 

If  the  warrant  is  issued  by  the  court  *  An  order  direotins:  a  further  return 

Jt  must  be  under  the  seal  thereof  ;  if  to  a  writ  of  habeas  corpus  or  certiorari 


Habeas  Cokpus  ok  Certiokaki  to  Inquire,  etc.    967 

No.  1075. 
Order  Admitting  Prisoner  to  Bail  Pending  Appeal. 

(Code  Civ.  Pro.,  §  2060.) 

(Title  of  proceeding.] 

A  final  order  having  been  heretofore  made  by  me,'  dated 

on  the day  of ,  18 — ,  in  the  above  entitled 

matter,  by  which  A.  B.  was  remanded  to  tlie  custody  of 

[or  by  which  the  proceedings  herein  were  dismissed, 

or  state  other  effect  of  order] ;  and. 

Whereas,  it  has  appeared  by  the  affidavit  of  said  A.  B., 
dated ,  18 — ,  that  said  A.  B.  has  appealed  [_or  in- 
tends to  appeal]  from  the  said  order  to  the  [Appellate  Di- 
vision of  the  Supreme  Court],  and  the  offense  with  which 
the  said  A.  B.  is  charged  being  a  bailable  offense,  and  due 
notice  of  this  application  having  been  given  to  the  district 
attorney  of county : 

Now,  on  the  application  of  said  A.  B.,  and  after  hearing, 
etc.,  and  on  filing  [name  any  opposing  papers] :  ^ 

It  is  hereby  ordered,  that  the  sum  in  which  the'said  A. 
B.  shall  be  admitted  to  bail  pending  the  said  appeal,  be  and 
the  same  is  hereby  fixed  at  the  sum  of dollars.^ 

issued   under  the  Code  of  Civ.  Pro.,  of  Code  Civ.  Pro.,  by  ch.  946  of  Laws 

(§  2015,ei  seq.),to  inquire  into  the  cause  of  1893,  taking  effect  Jan.  1,  1896. 

of  detention  of  a  person,  is  not  appeala-  '  The  order  may  be  made  either  be- 

ble  under  section   2058,  id.,  and   the  fore  or   after  the  final  order.     (Code 

General  Term  (now  Appellate  Division)  Civ.  Pro.,  §  2060.) 

of  the  Supreme  Court  has  no  author-  "  See  note  4,  page  126,  as  to  specify- 

ity  to  review  it.    (Matter  of  Larson,  96  ing  papers  read. 

N.  Y.,  381 ;  rev'g  S.  C,  31  Hun,  539.)  =The  act  (ch.  663  of  Laws,  1873)  of 
"Where,  upon  appeal  from  an  order  which  section  2060  {supra)  is  a  revis- 
of  the  General  Term  reversing  such  an  ion,  did  not  enlarge  the  number  of 
order,  the  appeal  papers  did  not  show  cases  in  which  bail  might  be  taken,  or 
that  the  objection  to  its  jurisdiction  which  might  be  reviewed  upon  habeas 
was  raised  before  that  court,  held,  that  corpus,  but  simply  rendered  more 
it  could  ha  raised  in  the  Court  of  Ap-  effective  the  review  of  those  cases  in 
peals.  (I<1.)  which  the  writ  could  be  lawfully  prose- 
See,  further,  as  to  proceedings  upori  cuted  under  the  provisions  of  the  Re- 
such  ai)peal8,  sections  2059-2064,  Code  vised  Statutes  in  force  when  it  was 
Civ.  Pro.;  and  as  to  execution  of  recog-  enacted.  (People  ex  rel.  Phelps  v. 
nizance  given  pending  the  appeal,  see  Oyer  and  Terminer,  14  Ilun,  21.) 
People  ex  rel.  Sherwin  v.  Mead  (64  See,  also,  People  ex  rel.  Cowley  v. 
How.  Pr.,  252).  See,  also,  amend-  Bowe  (58  How.  Pr.,  393). 
m(-ritH  to  sections  2061,  2062  and  2004 


968  FoKMS  Relating  to 

No.  1076. 

Recognizance  of  Prisoner  on  Appeal  from  Final  Order  Dis- 
missing Proceedings,  etc.,  on  Habeas  Corpus,  etc. 

(Code  Civ.  Pro.,  i;§  2061,  2062.) 

As  in  form  No.  1069  to  [*],  and  from  thence  as  follows: 
Whereas,  the  said  A.  B.  is  in  the  custody  of  the  sheriff  of 

the  county  of ,  under  a  commitment  from,  etc.,  by 

which  commitment  it  appears  that  the  said  A.  B.  is  charged 
with  tlie  crime  of  [naming  itj ;'  and,  whereas,  a  final  order 
has  been  made  by  Hon.  A.  O.,  a  justice  of  the  Supreme 
Court,  upon  an  application  to  him  by  said  A.  B.  for  a  writ 
of  habeas  corpus  [or  of  certiorari]  to  inquire  into  the  cause 
of  his  detention  dismissing  the  said  proceedings  [or  remand- 
ing the  said  A.  B.  to  the  custody  of  said  sheriff,  etc.  (stating 
general  nature  of  the  order)],  w^hich  order  bears  date  on  the 

day  of ,  18—  ;  and,  whereas,  the  said  A.  B. 

has  perfected  [or  intends  to  take]  an  appeal  from  said  final 
order  to  the  [Appellate  Division  of]  the  [Supreme]  Court. 

[Or  whereas,  the  said  A.  B.  has  appealed  to  the  (Appel- 
late Division)  of  the  (Supreme)  Court  from  said  final  order; 
and,  whereas,  said  Appellate  Division  has  affirmed  {or  re- 
versed) the  said  order,  and  the  said  A.  B.  has  perfected  an 
appeal  to  the  Court  of  Appeals  from  the  said  order  of 
affirmance  (or  reversal),  dated ,  18 — .] 

Now,  therefore,  the  condition  of  this  recognizance  is  such 
that  if  the  said  A.  B.  shall  personally  appear  at  a  Term  of 
the  Appellate  Division  of  the  [Supreme]  Court,  to  be  held 

at  the  of ,  on  the day  of , 

18 — ,  and  abide  by  and  perform  the  order  of  the  said  ap- 
pellate court,  then  this  recognizance  to  be  void,  or  other- 
wise to  remain  in  full  force  and  virtue.^ 

'The  offense  must  be  bailable.    (Code  of  the  court,  relating  to  the  disposition 

Civ.  Pro.,  §  2060.  of  the  prisoner,  is  made  at  the  term 

This  recognizance  may  also  be  given  specified  in  a   recognizance,  given  as 

on  appeal  to  the  Court  of  Appeals  from  prescribed  in  section  2061  or  pection 

an  order  reversing  the  order  granting  2062  of  this  act,  the  matter  is  deemed 

the  discharge  of  the  prisoner.     (Code  adjourned,   without  an  order  to   that 

Civ.  Pro.,  §2062).     In  that  case  it  will  effect,    to    the    next    term  of    the  ap- 

be  necessary  fo  make  a  slight  change  i)ellate  division  of  the  Supreme  Court, 

in  the  recital.  to  be  held   in  the  same  dei)artment ; 

*  Where  no  order  or  other  direction  ami     thereafter     to    each    successive 


Mandamus.  969 

[Or  in  case  of  an  appeal  to  the  Court  of  Appeals,  say : 
shall  personally  appear  at  a  term  of  the  Appellate  Division 
of  the  (Supreme)  Court  to  abide  by  and  perform  its  judg- 
ment or  order,  made  after  the  determination  of  the  said 
last  mentioned  appeal,  then,  etc.] 

A.  B.  [L.  s.] 
C.  D.  [L.  s.] 
E.  F.     [L.  s.] 

Subscribed  and  acknowledged  before  me,  this  day  and 
year  first  above  written  by  [A.  B.],'  C.  D.  and  E.  F. 

A.  0.,  Judge,  etc. 

fJustification  as  in  form  No.  1069,  and  approval  as  in 
form  No.  340.  J  

Article  Fourth. 

FORMS  RELATING  TO  THE  WRIT  OF  IHANDAMUS. 

(Code  Civ.  Pro.,  Ch.  16,  Tit.  2,  Art.  4.) 

No.  1077.  AJBdavit  on  application  for  writ  of  mandamus. 

1078.  Order  for  issue  of  writ  of  mandamus. 

1079.  Alternative  writ  of  mandamus. 

1080.  Writ  of  peremptory  mandamus. 

1081.  Notice  of  motion  and  order  to  show  cause  on  application  for  per- 

emptory mandamus. 

1082.  Affidavit  of  service  of  alternative  writ  of  mandamus, 

1083.  Return  to  alternative  writ  of  mandamus. 

1084.  Demurrer  to  alternative  writ  of  mandamus 

1085.  Demurrer  to  return  to  alternative  writ  of  mandamus. 
•1086.     Notice  of  filing  return  to  alternative  writ  of  mandamus. 

1087.     Notice  of  appeal  from  order  granting  peremptory  mandamus,  or 
from  final  order  upon  alternative  mandamus. 


No.  1077. 
Affidavit  on  Application  for  Writ  of  Mandamus. 

(Code  Civ  Pro.,  §  2067.) 

County,  ss.: 


A.  B.,  of ,  being  duly  sworn,  says,  that  [here  set 


term  until   Buch   an   order   or   direc-  ments  to  said  sectiona  2061  and  2062 

tion  is  made.     The  prisoner  is  hound  Vjy  the  same  chapter,     A  stay  of  pro- 

to    attend    at    each    successive   term  ceednigsunder  a  final  order  on  habeas 

of    the    appellate    division,    and    the  corpus  discharging^  a  prisoner,  pend- 

recognizance     is     valid     for     his    at-  ing  an  appeal  from  such  oi-der,  cannot 

tendance    accordingly,     without    any  be  granted.     (People  ex  rel.  Young  v. 

notice    or   other   formal   i)rocee(IingH.  Ktout  (10  MiBC.,24'7.)    See,  also.  People 

(Code  Civ.  Pro.,  §  2064,  as  amended  ex  rel.  Mclntyre  v.  Huribut  (67  How. 

by  ch.  946  of  Laws  of  189r),    taking  Pr  ,  362). 

effect  Jan.  1,  1896),     See,  also,  amend-  '  See  note  2  to  form  No,  1069, 

122 


970 


Forms  Relating  to 


forth  the  facts  to  show  that  the  relator  is  entitled  to  the 
writ,  and  to  the  relief  demanded].' 

That,  etc.  [as  in  form  No.  209  from  (f),  when  application 
is  made  ex  parte. 


[Jurat  as  in  form  No.  46.] 


A.  B. 


No.  1078. 
Order  for  Issue  of  Writ  of  Mandamus. 

(Code  Civ.  Pro.,  §§  2067,  2070.) 

[At,  etc.,  as  in  form  No.  80.] 
[Title  of  proceeding.] 

On  reading  and  filing  the  affidavits  of,  etc.  [naming  motion 
papers^,  and  on  motion  of  E.  C.  for  the  relatoi",  and  after 
hearing  H.  F.,  in  opposition  thereto: 

It  is  ordered  [*],  that  an  alternative  \or  a  peremptory] 
mandannis  issue  out  of  and  under  the  seal  of  this  court, 
directed  to  the  said  [naming  defendant],  commanding  him 
forthwith  to  [state  acts  required  {or  to  show  cause  to  the 

contrary  at  the countj^  clerk's  office,  in  the 

of  ;  or  at  the  office  of  the  clerk  of  said 

court  in,  etc.),  twenty  days  after  the  service  of  said  writ 
upon  him.' 


*  To  entitle  a  party  to  a  writ  of  man- 
damus, he  must  show  himself  leg-ally 
and  equitably  entitled  to  some  right 
properly  the  subject  of  the  writ,  and 
that  it  is  legally  demandable  from  the 
person  to  whom  the  writ  ia  diit'cted; 
also  that  such  person  still  has  it  in  his 
power  to  perl'orm  the  duty  required. 
(People  ex  rel.  Stevens  v.  Ilayt  (66 
N.  Y.,  606  ;  rev'g  S.  C,  7  Htin,  3;*). 

So,  also,  whatever  is  requii  ed  to  be 
done  by  the  relator  as  a  condition 
}»recedent  to  the  right  demanded,  must 
be  shown  atlirmalively  to  have  been 
performed  by  him  before  he  is  entitled 
to  the  writ.     (Id.) 

See,  also,  People  ex  rel.  Clason  v. 
Nassau  Fen-y  Co.  (86  Hun,  128),  People 
»'X  rel.  Wooster  v.  Maher  (64  id.,  408), 
Peojtle  ex  rel.  Dowdney  v.  Thompson 
(;>9  N.  Y.,  641),  People  ex  rel.  Stevens 
\.  Lott  (42  Hun,  408),  Peoi)le  ex  rel. 
Boltzer  v.  Daley  (37  id.,  4G1),  People 
ex  rel.  Everett  v.  Supervisors  of  Ulster 
(93  N.  Y.,  397).  People  ex  rel.  Hall  v. 
Supervisors  of  Greene)  13  Abb.  N.  C, 
421),  People  ex  rel.  City  of  Lockport 


V.  Supervisors  of  Niagara  (49  Hun, 
22),  Clementi  v.  Jackson  (92  N.  Y., 
591),  People  ex  rel.  Cooper  v.  Registrar 
of  Arrears  (114  id.,  19),  People  ex  rel. 
Ostrander  v.  Chapin  (105  id.,  309), 
People  ex  rel.  Eq.  Life  Ins.  Soc.  of 
U.  S.  V.  Chapin  (103  id.,  635  ;  aff'g 
S.  C,  39  Hun,  230),  People  ex  rel. 
Millard  v.  Chapin  (104  N.  Y.,  96; 
rev'g  S.  C,  40  Hun,  386),  People  ex 
rel.  Woods  v.  Crissey  (91  N.  Y.,  610), 
People  ex  rel.  Smith  v.  Schiellein  (95 
id.,  124),  Pe(  pie  ex  rel.  Russell  v. 
Canvassers  of  All)any  (46  Hun,  390), 
People  ex  rel.  McMackin  v.  Boai-<l  of 
Police  of  N.  Y.  (107  N.  Y.,  235  ;  aff'g 
46  Hun,  296),  People  ex  rel.  Third 
Avenue  R.  Co.  v.  Newton  (112  N.  Y., 
3:16),  People  V.  Myers  (50  Hun, 
479,  aff'd  112  N.  Y.,  676),  People 
ex  rel.  Stanley  v.  Van  Siclen  (43 
id.,  537),  Peojile  ex  rel.  Stranahan 
v.  Thompson  (98  N.  Y.,  6),  People  ex 
rel.  Title  Guaranty,  etc.,  Co.  v.  Reilly 
(38  Hun,  429),  People  ex  rel.  Bennett 
V.  Miller  (43  id.,  363),  People  ex  rel 
Robinson  v.  O'Keefe  (100  N.  Y.,  572)| 


Forms  Relating  to 


970a 


People  V.  N.  Y.,  L.  E.,  etc.,  R,  Co. 
(104  id.,  58  ;  rev'g  S.  C,  40  Hun,  570), 
People  ex  rel.  Union  Ins.  Co.  v.  Nash 
(111  N.  Y.,  310),  People  ex  rel.  Hum- 
phrey V.  Supervisors  of  Ulster  (30 
Hun,  146),  People  ex  rel.  "Welling  v. 
Meakim  (56  id.,  626),  People  ex  rel. 
Mount  Magdalen  School  v.  Dickson 
^57  id.,  312),  People  ex  rel.  Nostrand 
V.  Wilson  (119  N.  Y..  515),  Matter  of 
Sullivan  (55  Hun,  285),  People  ex  rel. 
Ballou  V.  Wendell  (57  id.,  362),  People 
ex  rel.  Lockwood  v.  Village  of  Sara- 
toga Springs  (54  id.,  16),  St.  Stephen's 
Church  Cases  (25  Abb.  N.  C,  242), 
Matter  of  McGrath  (56  Hun,  76), 
People  V.  Myers  (35  State  Rep., 
755 ;  afF'd  without  opinion  (126  N. 
Y.,  639),  Matter  of  Attorney-General 
(58  Hun,  218),  People  ex  rel.  Wil- 
son V.  Trustees  of  Mt.  Vernon  (59 
Hun,  204),  Brown  v.  Duane  (60  id., 
98),  People  ex  rel.  Stimson  v.  Board  of 
Education  of  N.  Y.  (id.,  486)  ,  People 
ex  rel.  NichoU  v.  N.  Y.  Infant  Asylum 
(122  N.  Y.,  190),  People  ex  rel.  Cecil 
V.  Bellevue  Hospital  Med.  College  (60 
Hun,  107,  aff'd  128  N.  Y.,  621),  People 
ex  rel.  Sherwood  v.  State  Boai-d  of 
Canvassers  (129  N.  Y.,  360),  People 
ex  rel.  O'Mara  v.  Supervisors  of 
Cayuga  (40  State  Rep.,  238),  People 
ex  rel.  Pond  v.  Supervisors  of  Monroe 
(47  id.,  456),  People  ex  rel.  Daley  v. 
Rice  (129  N.  Y.,  449),  Wren  v.  Goet- 
ting  (133  id.,  569),  People  ex  rel.  Lane 
V.  Case  (46  State  Rep.,  2G9),  People  ex 
rel.  Jones  v.  N.  Y.  Horaoepathic  Medi- 
cal College  and  Hospital  (47  id.,  395), 
People  ex  i-el.  Wood  v.  Assesyoi-s,  etc., 
of  Taxes  of  Brooklyn  (137  N.  Y.,  201), 
People  ex  rel.  Hasbrouck  v.  Super- 
visors of  Dutchess  (135  id.,  522),  Peo- 
ple ex  rel.  Howes  v.  Tracy  (66  Hun, 
465),  People  ex  rel.  Woodward  v. 
Rosendale  (5  Misc.,  378),  People  ex 
rel.  Crounse  v.  Supervisors  of  Fulton, 
(70  Hun  560),  Weston  v.  City  of  New- 
burgh  (67  id.,  127),  People  ex  rel. 
Kellner  v.  Mayor,  etc.,  of  N.  Y.  (3 
Misc.,  131),  People  ex  rel.  Reynolds  v. 
Common  Council  of  City  of  Buffalo  (2 
id.,  7),  People  ex  rel.  George  E.  Mat- 
thews Co.  v.  City  of  Buffalo  (5  id.,  36). 
People  ex  rel.  Faigo  v.  Rosendale  (76 
Hun,  112),  People  ex  rel.  Woodward 
V.  Rosendale  (irl.,  103),  People  ex  rel. 
Fairchild  v.  Preston  (140  N.  Y.,  549), 
People  ex  rel.  Wooster  v.  Maliei-  (HI 
id.,  335),  Hayes  v.  Consolidated  Gas 
Co.  (143  id.,  641),  Peojjle  ex  rel.  Am. 
Bible  Society  v.  Commissioners  of 
Taxes  (142  id.,  348),  People  ex  rel. 
Keteltas  v.  Fitch  (78  Hun,  321),  Peo- 
ple ex  rel.  Keene  v.  Supervisors  of 
Queens  Co.  (142   N.  Y.,  271),  Matter 


of  Baird  (75  Hun,  545),  Matter  of 
Ryan  (6  Misc.,  478),  People  ex  rel. 
Miller  v.  Justices  of  Sessions  (78  Hun, 
334),  Matter  of  Torney  (7  Misc.,  260), 
People  ex  rel.  Huntington  v.  Crennan 
(141  N.  Y.,  239),  Matter  of  Popoff  (10 
Misc.,  272),  Matter  of  Loeder  (14  id., 
208),  People  ex  rel.  Hoffman  v.  Ted- 
castle  (12  id.,  468),  People  ex  rel. 
Lewis  v.  Brush  (146  N.  Y.,  60),  Mat- 
ter of  Freel  (89  Hun,  79),  People  ex 
rel.  Weed-Parsons  Co.  v.  P;ilmer  (14 
Misc.,  41),  Matter  of  Harris  (12  id., 
223),  People  ex  rel.  Ranton  v.  City  of 
Syracuse  (88  Hun,  203),  Matter  of  Not- 
tingham (id.,  443),  People  ex  rel. 
Kings  Co.  Gas  and  Illuminating  Co.  v. 
Schieren  (89  id.,  220),  People  ex  rel. 
Goetchius  v.  McGoldrick  (24  Civ.  Pro. 
R.,  292),  People  ex  rel.  Ryan  v. 
Aldri.lge  (S3  Hun.  279),  Nassau 
Electric  R.  Co.  v.  White  (12  Misc., 
631),  People  ex  rel.  Dinsmore  v.  Gil- 
roy  (82  Hun,  500).  Sheehan  v.  Treas- 
urer of  Long  Island  City  (11  Misc., 
4S7),  People  ex  rel.  Ready  v.  Mayor 
of  Syracuse  (144  N.  Y.,  63),  People 
ex  rel.  Dady  v.  Supervisors  of  Brook- 
lyn (89  Hun,  241),  Peoide  ex  rel. 
Cochrane  v.  Wells  (11  Misc.,  239), 
People  ex  rel.  Slater  v.  Smith  (S3  Hun, 
432),  People  ex  rel.  Read  v.  Town 
Auditors  (80  id.,  114),  People  ex  rel. 
Rumph  V.  Supervisors  of  Kings  Co. 
(89  id.,  38),  People  ex  rel.  Goj'ing  v. 
President,  etc.,  of  Village  of  Wapping- 
ers  Falls  (S3  id.,  130,  aff'd  S.  C, 
144  N.  Y.,  616),  Matter  of  Torney  (11 
Misc.,  291),  People  ex  rel.  Drake  v. 
Sutton  (SS  Hun,  193),  People  ex  rel. 
Grunwald  v.  Ind.  Order  Ahavas  Israel 
(13  Misc.,  426),  Jordan  v.  Board  of  Ed- 
ucation (14  id.,  119),  People  ex  rel. 
Purdy  v.  Fitch  (147  N.  Y.,  355),  Peo- 
ple ex  rel.  Hoffman  v.  Rupp  (90  Hun, 
145),  Gleason  v.  Blanc  (14  Misc.,  620), 
among  recent  cases  as  to  issue  of 
mandamus. 

See,  also,  notes  to  forms  Nos.  1078, 
1079,  1080. 

"  See  as  to  place  where  the  writ  is  to 
be  ma<le  returnable.  Code  Civ.  Pro., 
§  2072,  as  amended  by  ch.  946  of  Laws 
of  189.5,  taking  effect  Jan.  1,  1896. 

Where  th«  lirst  writ  of  mandamus 
has  V)een  tiuly  served,  a  return  must 
be  made  to  the  same  as  therein  re- 
(piired,  unless  it  is  an  alternative  writ, 
and  a  demiirier  thereto  is  taken.  In 
default  of  a  return,  the  person  or  per- 
sons ujxiii  whom  (he  writ  was  served 
maybe  j)uniHh(Hl,  upon  the  application 
of  tli(;  j)eople  oi*  of  the  relator,  for  a 
contemj)t  of  court.  (Code  Civ.  Pro., 
§  2073.) 


Mandamus.  971 

No.  1079. 
Alternatiye  Writ  of  Mandamus. 

(Code  Civ.  Pro.,  §  2067.) 

As  in  form  No.  1080  to  [*],  and  from  thence  as  foUows : 
Now,  therefore,  we  being  willing  that  full  and  speedy  jus- 
tice be  done  in  this  behalf  to  him,  the  said  A.  B.,  as  it  is 
just,  command  you,  firmly  enjoining,  that  immediately  after 
the  receipt  of  this  writ,  you  [insert  the  thing  or  matter  re- 
quu^ed  to  be  done  or  omitted,  substantially  according  to  the 
order  of  the  court  allowing  the  mandamus],  or  that  you 
show  cause  to  the  contrary  thereof,  lest  complaint  shall 
again  come  to  us  by  your  default ;  and  in  what  manner  you 
shall  have  executed  this,  our  writ,  make  known  to  our  [Su- 
preme] Court  at  the  office  of  the  county  clerk  of 

county  [or  of  the  clerk  of  said  court],  at  the of 

,  twenty  days  after  the  service  hereof  upon  you.' 

Witness,  etc.  [teste]. 

[l.  s.]  J.  L.,  Clerk, 

E.  C,  Attorney  for . 

[Allowance  as  in  form  No.  1052.] 


No.  1080. 
Writ  of  Peremptory  Mandamus. 

(Code  Civ.  Pro.,  §  2070.) 

The  People  of  the  State  of  New  York  [itpon  the  relation  of 
A.  B."]  to  [the  Court,  Board  of  Supervisors,  Commis- 
sioners of  Highways,  or  other  officers  or  persons  to 
whom  it  is  directed],  greeting  : 
Whereas  [here  recite  the  facts  or  statements  briefly  which 
preceded  the  gravamen  or  injury].     Nevertheless  you,  the 
aforesaid   [court,   officer   or  person]   have  unjustly   [state 

'  As  to  the  contents  of  alternative  See  also  amendments  to  §§  2084,  2085, 

mandamus  and  demurrer  thereto,  see  2087,  2089  of  Code  Civ.  Pi-o.  by  chap. 

Code  Civ.  Pro.,  §  2076.     That  the  pro-  946  of  189r>,- taking  effect  January  1, 

ceediiig  by  mandamus  was  an  action  1S9G. 

under  the  former  practice,  where  That  the  writ  of  alternative  man- 
there  had  been  a  return  and  the  suit  dainua  cannot  be  quaHhed  or  set  aside 
had  gone  to  pleading.s,  and  a  trial  upon  motion  for  any  matter  involving 
thereon  had  been  had,  see  People  ex  the  merits,  see  Code  Civ.  Pro.,  §  2075. 
rel.  Lumley  v.  Lewis  (2S  How.  Pr.,  A  motion  to  set  such  writ  a-side  for 
159,470);  and  see  si-ctions  2082-2090,  any  other  cause,  or  to  set  aside  the 
Code  Civ.  Pro.,  f,'enerally  as  to  the  service  thereof,  must  be  made  at  a 
proceedings  after  iHHue.  The  proceed-  term  whereat  the  writ  might  have 
ing  is  now  a  special  proceeding  under  been  granted.  (Id.) 
title  2  of  chap.    16,   Code   Civ.   Pro.  See  fui-ther  provisions    aa    to  writ 


972 


Forms  Kelating  to 


briefly  the  order  or  in'oceeding  of  which  you  complain],  as 
we  are  informed  hy  his  complaint  [*],  and  which  complaint 
we  have  adjudged  to  be  true,  as  appears  to  us  of  record: 

Now,  therefore,  we  being  willing  that  full  and  speedy  jus- 
tice be  done  in  this  behalf  to  him,  the  said  A.  B.,  as  it  is 
just,  command  you,  firn)ly  enjoining,  that  immediately  after 
the  receipt  of  this  writ  you  [insert  the  thing  or  matter  re- 
quired to  be  done,  or  omitted,  substantially  according  to 
the  order  of  the  court  allowing  the  mandamus],  lest  com- 
plaint shall  again  come  to  us  by  your  default ;  and  in  what 
manner  this,  our  command,  shall  be  executed,  make  appear 
to  our  said  justices  of  our  said  Supreme  Court  of  judicnture, 

on  the day  of ,  18 — ,  at  a  Special  Term  of 

said  Supreme  Court,  to  be  held  at,  etc.,  and  then  sending 
back  to  us  this  our  writ,' 

Witness,  etc.  [teste]. 

[L.  s.]  J.  L.,  Cleric. 

E.  C,  Attorney  for . 

[Allowance  as  in  form  No.  1052.] 


and  to  pleadings  thereunder,  section 
2080,  Code  Civ.  Pro.  ;  and  as  to  where 
writ  may  be  granted,  see  sections 
20G8,  206'Jid.,  as  amended  by  chai^.  946 
of  Laws  of  1S95,  taking  effect  January 
1,  1S96,  People  ex  rel.  Lowei-  v.  Dono- 
van (29  Abb.  N.  C,  172;  135  N.  Y., 
82.  rev'g  S.  C,  63  Hun,  512.) 

''See  Code  Civ.  Pro.,  §  1994. 

'  It  is  error  for  the  court  to  grant  a 
mandamus  under  seal  ujion  a  motion 
in  an  action.  Mandamus  is  now  a 
State  writ,  and  should  be  apjilied  for 
in  a  separate  jiroceeding.  (Youmans 
v.  Teny,  19  Week.  Dig.,  269  [Gen. 
Tra.,  Supr.  Ct.]  ) 

See  as  to  i)i'aclice  upon  application 
for  ])ei"emplory  mandamus,  and  rules 
relating  thereto,  People  v.  Board  of 
Supei-visors  (04  N.  Y.,  600),  People  v. 
Wendell  (71  id.,  171),  People  v.  Board 
of  Apportionment  (04  id.,  627),  Pec^pie 
V.  Assessors  (32  How.  Pr.,  14U),  Peo- 
]ile  ex  rel.  Schwager  v.  IMcLean  (25 
Abb.  N.  C,  470),  People  v.  N.  Y.  Cen- 
tral, etc..  R.  Co.  (:;0  Hun,  78),  People 
ex  rel.  Hasbrouek  v.  Canvassers  of 
Dutchess  Co.  (45  State  Rep.,  613), 
People  ex  rel.  Best  v.  Preston  (02 
Hun,  185),  People  ex  rel.  Hasbiouck 
V.  Sujierviiors  of  Dutchess  (lo5  N. 
Y.,  522),  Matter  of  Manning  (71  Hun, 
236).  People  ex  rel.  O'SuUivan  v.  New 
York  Law  School  (08  id.,  118),  People 


ex  rel.  Bush  v.  Canvassers  of  Ulster 
Co.  (66  id.,  205),  People  ex  rel. 
Daniels  v.  Crawford  (08  id.,  547), 
Matter  of  Loader  (14  Misc.,  208),  Peo- 
ple ex  rel.  Hoffman  v.  Tedcastle  (12 
id.,  468),  People  ex  rel.  Lewis  v. 
Brush  (146  N.  Y.,  60,  aff'g  S.  C,  83 
Hun,  613),  Matter  of  Freel  (89  Hun, 
79),  f*eople  ex  rel.  Purdy  v.  Fitch  (147 
N.  Y.,  355,  rev'g  S.  C,  87  Hun,  304), 
among  other  cases. 

It  can  only  now  be  granted,  in  the 
first  instance,  where  the  applicant's 
right  to  the  mandamus  depends  only 
upon  questions  of  law,  and  notice  of 
the  application  has  been  given  to  a 
judge  of  the  court,  or  to  the  corpora- 
tion, board  or  other  body,  officer  or 
other  person  to  which,  or  to  whom,  it 
is  directed.     (Code  Civ.  Pro.,  §  2070.) 

For  proofs  i-equired  upon  the  appli- 
cation, manner  of  service  of  writ,  etc., 
see  same  section  as  amended  by  chap. 
490  of  Laws  1895,  taking  effect  Janu- 
ary 1,  1896. 

As  to  consequence  of  failure  to  make 
return,  see  section  2073,  Code  Civ.  Pro. 

A  motion  to  set  aside  or  quash  a 
writ  of  temporary  mandamus,  or  to 
set  aside  the  service  thereof,  must 
be  made  at  a  tei-m  whereat  the  writ 
might  have  been  granted.  (Code  Civ. 
Pro.,  §  2075.) 


Mandamus.  973 

No.  1081. 

Notice  of  Motion  and  Order  to  Show  Cause  on  Application 
for  Peremptory  Mandamus. 

(Code  Civ.  Pro.,  §  2070.) 

As  in  forais  Nos.  324  and  325,  inserting  as  relief,  that  a 
writ  of  peremptory  mandamus  issue  to  [name  board,  offi- 
cer, etc.],  directing  said to  "[state  object  of  writ].^ 


No.  1082. 
Affidavit  of  Service  of  Writ  of  Alternative  Mandamus. 

(Code  Civ.  Pro.,  §  2071.) 

County,  ss.  : 


A.  B.,  of ,  being  duly  sworn,  says,  that  on  the 

day  of ,  18 — ,  at ,  in  the  county 


of ,  he  served  the  annexed  writ  upon  [name  tlie 

judge  or  judges  of  the  court ;  or  the  members  of  the  board 
or  body  served  ;  or  the  chairman  or  other  presiding  officer 
of  the  board  oi'  body,  or  the  officer  of  the  corporation,  de- 
scribing them  by  their  official  titles],  by  delivering  to  him 
[or  to  each  of  them]  a  copy  of  the  annexed  original  writ, 
and,  at  the  same  time,  showing  him  [or  each  of  them],  the 
said  annexed  original  writ,  as  follows." 

A.  B. 
[Jurat  as  in  form  No.  46.  J 


No.  1083. 
Return  to  Writ  of  Alternative  Mandamus. 

(Code  Civ.  Pro.,  ^g  2074,  2077.) 

[Title  of  cause.] 

The  return  of  C.  D.  to  the  alternative  writ  of  mandamus, 
a  copy  of  which  is  hereto  annexed  marked  A,  shows  cause 
against  obeying  the  command  of  said  writ,  as  follows : 

'  See  notes  to  form  No.  1080.  writ  may  be  dispensed  with,  and  ser- 

'  "Where  one  or  more  of  the  persons,  vice  may  be  made  upon  him  or  them 

upon  whom  to  make  service,  as  pre-  as  prescribed  by  law  for  the  service  of 

scribed  in  section  2071  of  Code  of  Civ.  a  summons  issued  out  of  the  Supreme 

Pro.,  cannot,  after  due  diligence  be  Court.     (Code  Civ.  Pro.,  §2071.) 
found,  the  exhibition  of  the  original 


974 


Forms  Relating  to 


[J^irst.]  The  said  C.  D.  denies,  etc.  [insert  any  necessary- 
denials  of  the  facts  alleged  in  the  writ,  and  allegations  of 
new  matter,  as  in  general  forms  of  answer  Nos.  140,  141].' 


No.  1084. 
Demurrer  to  Writ  of  Alternative  Mandamus. 

(Code  Civ.  Pro.,  g  2076.) 

See  forms  of  demurrer  to  complaint  in  article  two,  title 
one  of  chapter  six,  ajile,  forms  Nos.  122,  etc.* 


No.  1085. 
Demurrer  to  Return  to  Writ  of  Alternative  Mandamus. 

(Code  Civ.  Pro.,  §2078.) 

[Title  of  proceeding.] 

The  above  named  relator  demurs  [or  the  people  of  the 
State  of  New  York  demur]  to  the  defendant's  return  to  the 


■  The  provisions  of  chapter  6  of  Code 
Civ.  Pro.,  relating  to  the  form  and 
contents  of  an  answer,  containing  de- 
nials and  allegations  of  new  matter, 
except  those  provisions  which  relate  to 
the  verification  of  an  answer,  and  to  a 
counterclaim  contained  therein,  apply 
to  a  return  to  an  alternative  writ  of 
mandamus,  showing  cause  against 
obeying  the  command  of  the  writ. 
For  the  purpose  of  the  application, 
each  complete  statement  of  facts,  as- 
signing a  cause  why  the  command  of 
the  writ  ought  not  to  be  obeyed,  is  re- 
garded aa  a  separate  defense,  and 
must  be  separately  stated  and  num- 
bered.    (Code  Civ.  Pro.,  §  2077.) 

That  the  person  having  made  a  re- 
turn to  the  writ  cannot  be  compelled 
to  make  a  further  return,  see  Code 
Civ.  Pi-o.,  §  2078. 

See,  further,  as  to  allegations,  etc., 
People  ex  rel.  Lefever  v.  Supervisors 
of  Ulster  (34  N.  Y.,  268),  People  ex  rel. 
Kelly  v.  Common  Council  (77  N.  Y., 
503),  People  ex  rel.  Neptaniel  v.  Order 
of  The  American  Star  (53  Super.  Ct., 
6G),  People  ex  rel.  Andrews  v.  Mc- 
Guire  (29  State  Rep.,  674),  People  ex 


rel.  Egan  v.  Columbia  Club  (20  Civ. 
Pro.  R.,  819),  People  ea:  reZ.  Uhrie  v. 
Gilroy  (60  Hun,  507),  People  ex  rel. 
Gaylord  v.  Supervisors  of  Schoharie 
(15  N.  Y.  Supp.,  795),  People  ex  rel. 
Mullin  v.  Brotherhood  of  Engineers 
(19  Civ.  Pro.  R.,  175),  Pierce,  Butler 
&  Pierce  Mfg.  Co.  v.  Bleckwenn  (62 
Hun,  265,  affd  131  N.  Y.,  570),  People 
ex  rel.  Ketcham  v.  Excise  Comm'rs  of 
N.  Y.  (46  State  Rep.,  41),  People  ex 
rel.  Dreicer  v.  Ouderkirk  (76  Hun, 
119). 

^  A  demuiTer  may  be  taken  to  this 
writ,  in  a  case  where  a  defendant  may 
demur  to  a  complaint,  or  to  a  cause  of 
action  separately  stated  in  a  complaint 
as  prescribed  in  chapter  six  of  Code 
Civ.  Pro.,  and  it  must  be  in  like  form. 
(Code  Civ.  Pro.,  §2070.) 

See,  further,  as  to  these  demurrers, 
same  section. 

Where  the  defendant  demurs  to  the 
writ,  or  to  a  part  thereof,  a  copy  of 
the  demurrer  must  be  served  upon  the 
attorney  for  the  people  or  the  relator 
within  the  time  prescribed  by  law  for 
filing  it.     (Code  Civ.  Pro.,  §  2081.) 


Mandamus.  975 

writ  of  alternative  mandamus  herein,  upon  the  ground  that 
the  same  is  insufficient  in  law  upon  the  face  thereof.' 
A.  B.,  Attorney  for  Relator 

[or  M.  N.,  Attorney- General]. 
[Office  address. 'J 


No.  1086. 
Notice  of  Filing  Return  to  Alternative  Writ  of  Mandamus. 

(Code  Civ.  Pro.,  t?  2081.) 

[Title  of  cause.] 

Sir— Please  take  notice,  that  the  defendant's  return  to 
the  alternative  writ  of  mandamus  in  this  cause,  has  been 

duly  filed  in  the  office  of  the county  clerk  [or  of 

the  clerk  of  the court].* 

Dated ,  18—. 

Yours,  etc., 

M.  F.,  Attorney  for  Defendant. 
[Office  address.'] 
To  J.  M.,  Attorney  for  Relator  [or  L.  W.  R.,  Attorney- 
General].  

No.  1087. 

Notice  of  Appeal  from  Order  Granting  Peremptory  Man- 
damus, or  from  Final  Order  upon  Alternative  Man- 
damus. 

(Code  Civ.  Pro.,  §2087.) 

See  form  No.  552,  page  424,  ante,  and  see  notes  to  that 
form.* 

'  Where  the  people  or  the  relator  de-  and  as  to  pleadingfa  upon  writ  of  man- 

mur  to  the  return,  or  a  part  thereof,  a  damua,  see  iil.,  §  2080.    As  to  costs  on 

copy  of  the  demurrer  must  be  served  mandamus,  see  §  2086,  id.  ;  People  v. 

upon  the  attoi-ney  for  the  defendant  N.  Y.,  Lake  Erie,  etc.,  R.  Co.  (47  Hun, 

within  twenty  days  after  notice  that  43),  People  v.  N.Y.  Central,  etc.  R.  Co. 

the  return  has  been  filed.     (Code  Civ.  (30  Hun,  78),  People  ex  rel.  Keene  v. 

Pro.,  §  2l'81.)  Board  of  Supervisors  of  Queens   Co. 

'See  note  2  to  form  No.  122.  (83  Hun,  237),  Matter  of  Schvvatjer  (36 

'Where  the   people   or  the  relator  Ktafe  Rep.,  534),   People  ex  rel.  Bates 

demur   to   the    return,    or  to   a   part  v.  Spcied  (73  Hun,  302). 

thereof,  a  copy  of  the  demurrer  must  *See  as  to  matters  relatinj^  to  such 

be  served  upon  the  attoi-ney  for  the  an   appeal.  In  the  Matter  of  Dedei  ick 

defendant    within   twenty  days   after  (77  N.  Y..  5%),  People  v.  Clyde  (CO  N. 

the  service  of  this  notice.     (Co.le  Civ.  Y.,  603),  Peoj)le  v.  Schuylei-  (60  N.  Y., 

Pro.,  §  20S1.)  242).  P.'oj.le  v.  Supervisors  (70  N.  Y., 

As  to  when  issue  of  fact  ai'ises  upon  228),   ]*e()])le    v.    R()chenter  nn<l   State 

the  return,  see  Code  Civ.  Pro.,  §207'J;  Line   R.  R.  Co.  (15    Hun,  188),  People 


976  Forms  Relating  to 

Article  Fifth. 

FORMS  RELATING  TO  THE  WRIT  OF  PROHIBITION. 
(Code  Civ.  Pro.,  Ch.  16,  Tit.  2,  Art.  5.) 

No.  1088.  Notice  of  motion  lor  writ  of  prohibition. 

1089.  Order  that  alternative  writ  of  prohibition  issue. 

1090.  Alternative  writ  of  prohibition. 

1091.  Allidavit  of  service  of  alternative  writ  of  prohibition. 

1092.  Return  to  alternative  writ  of  prohibition. 

1093.  Final  order  awarding  absolute  writ  of  prohibition,  or  against  the 

relator. 

1094.  Absolute  writ  of  prohibition. 

1095.  Notice  of  appeal  from  final  order  in  proceedings  by  writ  of  pro- 

hibition.   

No.  1088. 
Notice  of  Motion  for  Writ  of  Proliibitiou. 

(Code  Civ.  Pro.,  §2091.) 

As  in  form  No.  170,  substantially,  to  [*],  and  from  thence 
as  follows  :  For  an  order  that  a  writ  [or  an  alternative  writ] 
of  prohibition  issue  out  of  said  court,  and  under  the  seal 
thereof,  commanding,  etc.  [state  requirements  of  writ],  and 
for  such  other  and  further,  etc. ;  that  said  application  will 
be  made  upon  the  affidavits  and  papers  with  copies  of  which 
you  are  herewith  served. 

Dated ,  18—. 

[Signature,  etc.,  as  in  form  No.  170.] 

To  A.  B.,  etc.  

No.  1089. 
Order  that  Alternative  Writ  of  Prohibition  Issue. 

(Code  Civ.  Pro.,  §2091.) 

As  in  form  No.  1078  to  [*],  and  from  thence  as  follows  : 
That  an  alternative  writ  of  prohibition  issue  out  of  and 
under  the  seal  of  this  court,  directed  to  [name  court  or 
judge]  and  to  C.  B.,  commanding  them  to  desist  and  refrain 
from  any  further  proceedings  in,  etc. 

[State  the  requirements  of  the  writ.] 

V.  N.  Y.  C,  etc.,  R.  R.  Co.  (30  Hun,  Ranton  v.  Doyle  (88  Hun,  203),  People 

7),  People  V.  Fairman  (91  N.  ¥.,385),  ex  rel.  Fiske  v.  Devermann  (83  Hun, 

People  V.  Spicer  (34  Hun,  584;  S.  C,  181),  People  ex  rel.  Piatt  v.  Board  of 

20  "Week.    Dig.,  444),  People   ex  rel.  State  Canvassers  (74  Hun,  179). 


Pkohibition.  977 

No.  1090. 
Alternative  Writ  of  Prohibition. 

(Code  Civ.  Pro.,  §  2094.) 

The  People  of  tlie  State  of  Neio  York  \on  the  relation  of 
A.  B.'],  to  [name  the  Court  or  Judge  to  he  restrained^ 
and,  ^o  E.  F./  greeting  : 

We  hereby  command  yon,  and  each  of  yon,  to  desist  and 
refrain  from  any  further  proceeding  in  an  action  pending  in 

the  [ Court],  in  which  M.  N.  is  i^laintiff  and  O.  F.  is 

defendant  [or  in  the  matter  of,  etc.;  or  with  respect  to  (de- 
scribing particuhir  matter  or  thing  to  be  refrained  from)],  [*] 
until  the  further  direction  of  the  [describing  court],  and 
also  to  show  cause  at  the  time  when,  and  the  place  where, 
this  writ  is  made  returnable,  why  you,  and  each  of  you, 
should  not  be  absolutely  restrained  from  any  further  pro- 
ceedings in  the  said  action  [or  special  i:)r()ceeding,  or  matter]. 

And  you  are,  and  each  of  you  is,  hereby  commanded  to 
make  your  return   to  this  writ,  at   the  [naming  term  of 

court],'  forthwith  \or  on  the day  of ,  18 — , 

at o'clock  in  the noon]. 

Witness,  etc.  [teste]. 

[L.  s.]  J.  L.  Clerk. 

A.  M.,  Attorney  for . 

[Office  address.] 

[Allowed,  etc.,  as  in  form  ]No.  1052,  adding  thereto  as  fol- 
lows :  Upon  the  affidavit  of  (said) ,  dated , 

18 —  (and  name  other  papers).'] 

'  See  Code  Civ.  Pro.,  §  1994.  may  be  granted,  id.,  §§  2092,  2093,  and 

'  T.^e  writ  must  be  directed  to  the  amendments   to  latter  section  by  ch. 

court  in  which,  or  to  the  judge  before  946  of  Laws  of  1895,  taking  effect  Jan. 

whom,  and  also  to  the  party  in  whose  1, 1896,  and  as  to  eflect  of  writ  granted 

favor,  the  proceedings  to  be  restrained  at   a   General   Term   (now   Appellate 

were  taken,  or  are  about  to  be  taken.  Division)  of  the  Supreme  Court,  ad- 

(Co  le  Civ.  Pro.,  2094).  dressed  to  the  Special  Term,  see  Peo- 

^  'J'he  wi-it  is  to  be  made  returnable  i>le  ex  rel.  The  Mayor  v.  Nichols  (79 

either  forthwith  or  at  a  day  certain,  N.  Y.,  582  ;  rev'g  S.  C,  18  Hun,  530). 
before  the  term  which  granted  it,  or         And  generally  as  to  cases  in  which 

upon   the  first  day  of  a  futui-e  term,  the  writ  will  lie,  see,  among  other  cases, 

therein  specified,  at  which  application  People  y.  Talcott  (21  Hun,  591  ;  S.  C, 

for  the  writ  might  have  been  made.  59  How.,  269),  People  v.  Waldron  (52 

Where   it  is  granted  at  a  term  of  the  How.  Pr.,  221),  People  v.  Coojier  (57 

appellate  division  in  a  judicial  depart-  id.,  416),   People  v  Speciid  TiM-m  (57 

ment,  adjoining  that  wherein  the  mat-  id.,  467),  People  v.  Third  District  Court 

ter  originated,  it  may,  in  the  discretion  (57  id.,  443),  People  v.  Court  of  Special 

of  the  C(jurt,  he  made  returnable  at  a  HesBionB(N.Y.Dai]y  Reg.,  Jan. 3,1884), 

terrnof  the  appellate  division  of  either  People  v.  McAdarn  (2  (Jiv.   Pro.  Rej>. 

department.    (Code  Civ.  Pro.,  §  2095,  [Hrowne],   52  ;  8.  C,  2  id.  (M(-Carty], 

as  amended  by   ch.  946   of  Laws   of  86;  58  How.,  442;  rev'd  84  N.Y.,  287), 

1895,  taking  eflect  Jan.  1,   1896.)  People    v.    Parker  (63  How.   Pr.,   3), 

See,  as  to  terms  at  which  the  writ  Thomson   v.   Tracy   (60   N.    Y.,    81), 


978  Forms  Relating  to 

No.  1091. 
Attidavit  of  Service  of  Alternative  Writ  of  Prohibition. 

(Code  Civ.  Pro.,  g  2095.) 

As  in  form  No.  1082,  adding  thereto  as  follows  :  And  de- 
ponent fuirlier  says,  that  he  delivered  with  each  copy  of 
said  writ,  served  as  aforesaid,  to  the  person  upon  the  same 
was  served,  a  copy  of  the  annexed  papers  upon  which  said 
writ  was  granted.' 

No.  1092. 
Return  to  Alternative  Writ  of  Prohibition. 

(Code  Civ.  Pro.,  §  2098.) 

[Title  of  proceeding.] 

The  court  of [describing  court],  held  in  and  for, 

etc.  [or  A.  O.,  justice,  etc.],  to  whom  the  writ  of  prohibi- 
tion, a  copy  of  which  is  hereto  annexed,  is  directed,  does 
hereby  make  return  to  said  writ  as  follows  [here  insert  state- 
ment of  the  facts  necessary  to  be  returned]. 

In  witness  whereof,  I  have  caused  the  seal  of  said  court 

to  be  hereunto  affixed,  this day  of ,  18 — . 

[l.  s.]  J.  L.,  Clerk  [or  A.  O.,  Justice,  etc.']. 

Or  as  follows : 

[Title  of  proceeding.] 

I,  C.  D.,  the  party  to  whom  the  writ  of  prohibition,  a 
copy  of  which  is  hereto  annexed,  is  directed,  do  hereby 

adopt  the  return  of  the court  [or  of  Hon.  A.  O., 

justice,  etc.],  hereto  annexed,  and  rely  upon  the  matters 

Norton  v.  Dowling-  (46  How.   Pr.,  7),  (20  Abb.  N.  C,  25  n).  People  ex  rel. 

People   ex   rel.    Salke  v.  Talcott   (21  Toy  v.  Mayer  (71  Hun,   182),   People 

Hun,  591),  Lunn  v.  Langbein  (12  W.  ex  rel.  Baldwin  v.  Goldfogle  (28  Civ. 

Dig-.,  20),   Matter  of  Cameron  (5  Hun,  Pro.,  417),  People  ex  rel.  Hess  v.  Hin- 

270),  People  ex  rel.  Moissen    v.  County  man  (74  Hun,  130). 

Court  of  Kings  (23  Week.  Dig.,  137),  *  This  addition  seems  to  be  proper, 

People  ex  rel.  James  v.  Surrogate  of  as  by  section  2094  of  Code  Civ.Pro.,  the 

Putnam  (16  Abb.  N.  C,  241;  36  Hun,  writ  need  not  contain  any  statement  of 

218),  People   ex  rel.  Smith  v.  Grogan  the  facts  orlegal  objections  upon  which 

(3   Crim.  Rep.,  335),   People   ex   rel.  the  relator  founds  his  claim  to  relief ; 

Evans  v.  Letson  (3  How.  Pr.  [N.  S],  and  by  section  2095  a  copy  of  the  pa- 

381),   Peojile  ex  rel.  Oakley  v.  Pettj"^  pers  upon  which  it  is  granted  is  to  be 

(32  Hun,  443),  People  ex  rel.  Howard  served  with  each  copy  of  the  writ. 

V.  Boswick   (2  City  Ct.,  163),  People  *  See    Code    Civ.    Pro.,   §   2095,    as 

ex  rel.  Henry  Pronae  Cooper  Co.  v.  amended  by  ch.  946  of  Laws  of  1895, 

Kelly  (12  Civ.  Pio.  R.,  414),  People  ex  taking  effect  Jan.  1,  1896. 
rel.  Wemple  v.  Canvassers  of  Albany 


Prohibition^.  979 

therein  contained,  as  sufficient  cause  why  the  said  court  [or 
justice,  etc.]  should  not  be  restrained,  as  mentioned  in  the 
said  writ. 

In  witness  whereof,  I  have  hereunto  subscribed  my  name, 

on  this day  of ,  18 — . 

C.  D. 

[Verification  by  C.  D.,  substantially  as  in  forms  Nos.  151, 

etc.]i  

No.  1093. 

Final  Order  Awarding  Absolute  Writ  of  Prohibition,  or 
against  the  Relator. 

(Code  Civ.  Pro.,  §  2100.) 

[At,  etc.,  as  in  form  No.  80  or  form  No.  211.] 
[Title  of  proceeding.] 

An  alternative  writ  of  prohibition  having  been  heretofore 
issued  in  the  above  entitled  matter,  pursuant  to  the  order 

of  this  court  herein,  dated  on  the day  of , 

18 — ,  returnable  at,  etc.,  and  directed  to  [name  court,  etc.], 
commanding,  etc.  [reciting  directions  of  alternative  writ], 
and  said  writ  having  been  duly  served  upon  said  [name 
court,  etc.,  served],  together  with  a  copy  of  the  paj^ers  upon 
which  it  was  granted,  and  [recite  proceedings  upon  return 
of  the  writ] : 

Now,  after  hearing,  etc.. 

It  is  hereby  ordered,  that  [*]  an  absolute  writ  of  prohibi- 
tion issue  herein,  out  of  and  under  the  seal  of  this  court, 
absolutely  restraining  the  said  [name  court  or  judge]  from 
any  further  ijroceedings  in  the  said  action  [or  special  pro- 
ceeding, or  matter],  and  that  all  proceedings  [or  specify 
proceeding^]  heretofore  taken  in  the  said  action  [etc.],  be 

'See  Code  Civ.  Pro.,   §  2098.     The  2099,  2101  and  2102,  id.,  by  ch.  946  of 

verification  need  not  be  made  where  1895,  taking'  effect  Jan.  1,  1896. 

the  return  consists  only  of  objections  '  The   proceedings  which  the  court 

to  the  legal  sufficiency  of  the  papers  or  officer,  "named  in  the  writ,  may  be 

upon    which    the    writ   was   granted,  directed  to  vacate  or  annul,  are  only 

(Id.)  Ihe   interlocutory  or  mesne    iiroceetl- 

See  further  as  to  return  ami  pro-  ing.i,  prior  to  the  final  decision  ;  for,  if 

ceedings    thereupon    and    thereafter,  there  has  been  a  tiniil   decision,  prohi- 

sections   2096-2102,    Code    Civ.    Pro.,  l)ition  will  not  lie.   (People  v.  Comm'rs 

and    amendments    to    sections    2096,  of  Excise,  61  How.  Pr.,  HH.) 


980  Forms  Relating  to 

vacated  and  annulled,  and  that  tlie  said  defendant,  A.  B., 

I)ay  to  the  said  relator,  CD.,  the  sum  of dollars, 

costs  and  disbursements  of  this  proceeding.' 

[0?'  as  above  to  (*j,  and  from  thence  as  follows  :  That  the 
said  (name  court  or  judge),  and  the  said  C.  D.,  be  and  they 
are  hereby  authorized  to  proceed  in  the  said  action  (etc.), 
as  if  the  said  alternative  writ  had  not  been  issued,  and  that 
the  said  relator,  C.  D.,  pay  to  the  said  defendant,  A.  B.,  the 
sum  of,  etc.,  as  above.] 


No.  1094. 
Ahsolute  Writ  of  Prohibition. 

(Code  Civ.  Pro.,  §  2100.) 

As  in  form  No   1090  to  [*],  inserting  therein  after  the 
words  "and  each  of  you,"  as  follows  :  Pursuant  to  the  final 

order  of  the  court  herein,  made  and  entered  on  the 

day  of ,  18—. 

Witness,  etc.  [teste]. 

[L.  s.]  J.  L.,  Clerk. 

0.  M.,  Attorney  for . 

[Allowed,  etc.,  as  in  form  No.  1052.] 


No.  1095. 

Notice  of  Appeal  from  Final  Order  in  Proceedings  by  Writ 
of  Prohibition. 

(Code  Civ.  Pro.,  §2101.) 

See  form  No.  552,  page  424,  ante.* 

'  See  as  to  punishment  for  non-pay-  Jan.  1,  1896 ;  and  see   further,   as  to 

ment  of  costs,  Code  Civ.  Pro.,  §  2007.  appeal  from  order  in  special  proceed- 

*  As  to  stay  upon  appeal,  see  Code  ing,  People   ex  rel.  Collins  v.  Spicer 

Civ.  Pro.,  §  2101,  as  amended  by  ch.  (20  Week.  Dig.,  444). 
946   of  Laws   of   1895,    taking   effect 


Wkit  of  Assessment  of  Damages.  981 


Article  Sixth. 
fo2:ms  eelating  to  the  writ  of  assessment  of 

DA^klAGES. 
(Code  Civ.  Pro.,  Ch.  IC,  Tit.  2,  Art.  6.) 

No.  1096.  Petition  on  application  for  writ  of  assessment  of  damages. 

1097.  Writ  cf  assessment  of  damages. 

1098.  Notice  of  execution  of  writ  of  assessment  of  damages. 

1099.  Oath  to  jurors  on  execution  of  writ  of  assessment  of  damages. 

1100.  Inquisition  upon  writ  of  assessment  of  damages. 

1101.  Return  of  execution  of  writ  of  assessment  of  damages. 

1103.     Notice  to  owners  and  persons  interested  in  the  property  of  filing 
inquisition,  etc. 

1103.  Order  confirming  inquisition. 

1104.  Petition  for  moneys  paid  into  court,  under  writ  of  assessment  of 

damages. 


No.  1096. 
Petition  on  Application  for  Writ  of  Assessment  of  Damages. 

(Code  Civ.  Pro.,  §  2104.) 

The  petition  of  G.  C,  governor  of  the  State  of  New  York, 
by  L.  W.  R.,  attorney-general  [or  district  attorney  of  the 
county  of ],  respectfully  shows  : 

That  your  petitioner  is  authorized  by  [state  the  law  au- 
thorizing the  taking]  to  take  possession  of  the  real  property 
hereinafter  described,  for  the  use  of  the  people  of  this  State, 
for  the  iDurposes  mentioned  in  said  act,  to  wit  [state  same]. 

That  your  petitioner  has  been  unable  to  agree,  and  cannot 
agree,  with  the  owner  [or  owners]  thereof  for  the  purchase 
of  said  real  proi)erty,  which  is  described  as  follows,  to  wit 
[insert  description  as  in  writ,  form  No.  1097]. 

Your  petitioner  therefore  prays  iliat  this  court  will  grant 
a  writ  of  assessment  of  damages  for  the  purpose  of  assessing 
the  damages  which  the  owner  or  owners  of  such  real  prop- 
erty will  sustain  by  being  deprived  thereof,  and  your  peti- 
tioner will  ever  pray,  etc. 

L.  W.  R.,  Attorney-General 

[or  District  Attorney  of County]. 

[Office  address.'] 

[Verification  as  in  form  No.  .02.] 

'  See  note  2  to  form  No.  122. 


982  FoK-Ms  Relating  to 

No.  1097. 
Writ  of  Assessment  of  Damages. 

(Code  Civ.  Pro.,  §§  2106,  2107  ) 

The  People  of  the  State  of  New  York,  to  the  Slier  iff  of 
CountiJ]'  greeting : 


Wliereas,  L.  R.,  attorney-general  of  the  State  of  New 

York  \or  district  attorney  of  the  county  of ],  has 

made  ax^plication,  in  the  name  of  the  governor  of  the  State, 
to  our  Supreme  Court,  at  a  Special  Term  thereof,  held  at  the 

of ,  in  the  county  of ,  on  tlie 

day  of ,  18 — ,  for  a  writ  of  assessment  of  damages, 

concerning  the  property  hereinafter  described,  of  which  he  is 
authorized  by  law  to  take  possession  for  the  use  of  the  peo- 
ple of  this  State  \or  of  the  United  States],'  and  cannot  agree 
with  the  owner  \or  owners]  thereof  for  its  purchase  ;  and, 

Whereas,  an  order  has  been  made  by  said  Special  Term, 
pursuant  to  said  application,  granting  the  said  writ,  which 

order  has  been  duly  entered  and  bears  date  on  the 

day  of ,  18 — . 

Now,  therefore,  we  command  you  to  inquire,  by  the  oaths 
of  twelve  men  of  your  county,  qualified  to  act  as  trial  jurors 
in  a  court  of  record,  whether  the  owner  or  owners  of  the 
said  real  property,  or  any  of  them,  will  sustain  any  dam- 
ages by  the  taking  thereof,  for  the  use  of  the  people  of  the 
State  ;  and  if  so,  the  amount  thereof  ;  and  that  you  return 
this  writ  to  the  Supreme  Court,  without  delay,  with  the 
finding  of  the  jury  thereupon." 

The  following  is  the  description  of  the  real  property  to 
be  taken,  above  referred  to,  to  wit  [describe  same,  as  re- 
quired in  complaint  in  ejectment].' 

Witness,  etc.  [teste]. 

[L.  s.]  J.  L.,  Clerk, 

L.  R.,  Attorney -Oeneral,  etc. 
[Office  address.*] 

[Allowed,  etc.,  as  in  form  No.  1052.] 

'  See  as  to  taking   by  the  United  ch.  9,  tit.  2,  art.  4  of  the  R.  S.,  from 

States,  section  2119,  Code  Civ.  Pro.  which  art.  6  of  tit.  2  of  ch.  16  of  Code 

'  See  The  United  States  v.  Dumplin  Civ.  Pro.,  is  taken. 

Island  (1  Barb.,  24),  which  seems  to  be  '  See  section  1511,  Code  Civ.  Pro. 

the  only  reported  case  under  part  3,  *  See  note  2  to  form  No.  122. 


Wkit  of  Assessment  of  Damages.  983 

No.  1098. 
Notice  of  the  Execution  of  Writ  of  Assessment  of  Bamages. 

(Code  Civ.  Pro.,  §2108.) 

State  of  New  York, 


County  of ,     f 

By  virtue  of  a  writ  of  assessment  of  damages,  issuing  out 
of  the  Supreme  Court  of  this  State,  and  tested  on  the 
day  of ,  18 — ,  and  to  me  directed  and  de- 
livered, by  which  I  am  commanded  to  inquire  by  the  oaths 
of  twelve  men  of  my  county,  qualified  to  act  as  trial  jurors 
in  a  court  of  record,  whether  the  owner  or  owners  of  the 
real  property  hereinafter  described  will  sustain  any  dam- 
ages by  the  taking  thereof,  for  the  use  of  the  people  of  the 
State,  and,  if  so,  the  amount  thereof. 

The  said  premises  are  described  as  follows  to  wit  [insert 
description]. 

Notice  is  therefore  hereby  given,  that  I  will  proceed  to 

execute  the  said  writ  on  the day  of ,  18 — , 

at •  o'  clock  in  the noon,  at  the ,  in 

the of ,  in  said  county.' 

Dated ,  18—. 

M.  N.,  Sheriff  of County. 


No.  1099. 

Oath  to  Jurors  on  Execution  of  Writ  of  Assessment  of 

Damages. 

(Code  Civ.  Pro.,  §2110.) 

You  do,  each  of  you,  swear,  that  you  will  diligently  in- 
quire whether  the  owner  or  owners  of  the  real  property,  to 
be  viewed  by  you,  and  which  is  mentioned  and  described 
in  the  writ  of  assessment  of  damages  issued  by  the  Supreme 

Court  of  this  State  to  the  sheriff  of county,  will 

sustain  any  damages  by  the  taking  thereof  for  the  use  of 
the  people  of  the  State  [or  of  the  United  States], *  and,  if 

'To  be  published  once  in  each  week  Civ.  Pro.,  §  2108.)  The  sheriff  must 
for  at  least  three  Biiccessive  weeks,  in  a  notify  twelve  men  of  his  county,  quali- 
newspaper  printed  in  the  county.  (Cod(!     fied  to  act  as  trial  jnrorH  in  a  coui't  <>f 


Writ  of  Assessment  of  Damages. 


983a 


record,  to  attend  at  the  time  and 
place,  and  for  the  purpose  specified  in 
the  notice.  Each  juror  must  be  notified 
as  a  juror  is  notified  to  attend  a  trial 
term  of  the  Supreme  Court.  Upon  his 
failure  to  attend,  when  duly  notified, 
his  attendance  may  be  procured  by 
attachment,  and  proceedings  may  be 
taken  against  him,  and  he  may  be 
punished  thereupon,  by  the  Supreme 
Court,  as  where  a  iuror,  duly  notified, 


fails  to  attend  at  a  trial  term  thereof. 
The  sheriff  may  require  the  attend- 
ance of  a  talesman,  in  place  of  a  juror 
notified  and  not  appearing ;  or  he  may 
adjourn  the  proceedings,  for  the  pur- 
pose of  punishing  the  defaulting  juror, 
or  compelling  his  attendance.  (Id., 
§  2109,  as  amended  by  ch.  946  of  Laws 
of  1895,  taking  effect  Jan.  1,  1896.) 
» See  note  1  to  form  No.  1097. 


984  FoKMS  Relating  to 

so,  the  amount  thereof  ;  and  will  give  a  true  verdict,  accord- 
ing to  the  best  of  your  judgment,  without  favor  or  par- 
tiality, so  help  you  God.' 


No.  1100. 
Inquisition  upon  Writ  of  Assessment  of  Damages. 

(Code  Civ.  Pro.,  §2111.) 

State  of  New  York,  ]  ^^  . 

County  of ,     ) 

Inquisition  taken  this day  of ,  18 — ,  at, 

etc.,  before  M.  N.,  sheriff  of  the  county  of ,  under 

and  by  virtue  of  the  writ  of  assessment  of  damages,  to  said 
sheriff  directed  and  delivered  and  to  this  inquisition  an- 
nexed, by  the  oaths  of  twelve  jurors  of  said  county,  quali- 
fied to  act  as  trial  jurors  in  a  court  of  record,  who,  being 
duly  summoned  and  sworn  by  the  said  sheriff,  say,  upon 
their  oaths,  that  A.  B.  is  the  owner  in  fee  of  the  real  prop- 
erty firstly  described  in  said  writ,  as  follows,  to  wit  [de- 
scribe same]. 

C.  D.  is  the  owner  in  fee  of  the  real  property  secondly 
described  in  said  writ,  as  follows,  to  wit  [describe  same]. 

And  E.  F.  holds  the  said  last  mentioned  real  property  by 

lease  granted  by  K.  L.,  on,  etc.,  for  the  term  of 

years,  at  an  annual  rent  of dollars. 

That  said  A.  B.  will  sustain  damages,  to  the  amount  of 
dollars,  by  being  deprived  of  the  said  premises  so 


owned  by  him. 

That  said  C.  D.  will  sustain  damages,  to  the  amount  of 

dollars,  by  being  deprived  of  the  said  premises  so 

owned  by  him. 

And  that  E.  F.  will  sustain  injury  and  damages,  to  the 

amount  of dollars,  by  being  deprived  of  the  said 

premises  so  held  by  him  as  aforesaid. 

And  the  said  jurors,  upon  their  oaths  aforesaid,  do  further 
say,  that  the  people  of  the  State  of  New  York  \or  of  the 
United  States],'  should  pay  for  the  taking  of  the  said  several 
parcels  of  real  property  the  said  several  sums  so  assessed  as 

>  See  note  1  to  form  No.  1097.  "  See  note  1  to  form  No.  1097. 


Writ  of  Assessment  of  Damages.  985 

aforesaid  to  the  said  persons  to  whom  the  same  are  assessed 
as  aforesaid,  respectively. 

In  witness  whereof  we,  the  said  sheriff,  as  well  as  the  said 
jurors,  have  hereto  set  our  hands  and  seals  the  day  and  year 

first  above  written. 

A.  B.,  8heri;Sr.     [l.  s.] 
,  Jurors,     [l.  s.] 


No.  1101. 
Eeturn  of  Execution  of  Writ  of  Assessment  of  Damages. 

(Code  Civ.  Pro.,  §  2111.) 

County  of ,  ss.  : 

I  certify  and  return,  that  on  the  coming  to  me  of  the 
within  writ  of  assessment  of  damages,  I  caused  due  notice 
of  the  time  and  place  of  executing  the  same  to  be  given,  by 
publishing  a  notice  thereof  once  in  each  week  for  three 
weeks  successively,  immediately  preceding  such  time,  in  a 
public  newspaper  printed  in  said  county  ;  that  I  summoned 
twelve  men  of  said  county,  qualified  to  act  as  trial  jurors  in 
a  court  of  record,  as  I  am  within  commanded,  to  attend  at 
the  time  and  place  designated  in  sach  notice  for  executing 
said  writ,  and  then  and  there  administered  to  each  of  said 
jurors  the  oath  prescribed  by  statute  ;  that  thereupon  the 
said  jurors  viewed  together  all  the  real  property  specified  in 
said  writ,  and  after  so  viewing  the  same  made  inquisition 
of  the  matters  required  in  and  by  the  within  writ  by  them 
to  be  made  ;  which  inquisition,  under  the  hands  and  seals  of 
the  said  jurors,  as  well  as  under  my  hand  and  seal,  is  hereto 
annexed.' 

Dated ,  18—. 

A.  B.,  Sheriff  of County. 


*  The  inquisition  and  return  are  to  sealed  by  the  sheriff  or  jurors,   but 

be    file<l   V>y  the   sheriff  immediately  only  to  be  signed  by  them,  but  it  seems 

after  the  signing  of  the  inquisition  in  to  have  been  customary  to  afHx  seals 

the  office  of  the  clerk  of  the  county  to  the    signatures   under   the    former 

in  which  the   real   estate  is  situated,  statute,  although  none  were  expressly 

(Code  Civ.  Pro  ,§  2111.)     That  section  required  by  it. 
does  not  require  the  inquisition  to  be 

124 


986  Forms  Relating  to 

No.  1102. 

Notice  to  Owners  and  Persons  Interested  in  the  Property 
of  Filinj;  Inquisition,  etc. 

(Code  Civ.  Pro.,  i^  2112.) 

Tu  the  oioners  o/\  and  persons  interested  in^  tlie  real  prop- 
erty hereinafter  described : 

You  are  hereby  notified  that  the  writ  of  assessment  of 
dainagt's,  lieretofore  issued  and  :'  livered  to  the  sheriff  of 

county,  to  assess  the  damages  which  the  owners 

of  the  real  property  hereinafter  mentioned  and  described 
will  snstai.i  by  being  deprived  thereof,  has  been  filed  with 
the   inquisition   made   thereajDon    and  the  return  of  said 

sheriff  thereto,  on  the day  of ,  18 — ,  in  the 

county  clerk's  office,  and  that  you  are  hereby  re- 
quired to  show  cause  at  a  Special  Term  of  the  Supreme 
Court,  to  be  held  at,  etc.,  on,  etc.,  why  the  said  inquisition 
should  not  be  confirmed  \or  w^hy  the  said  inquisition  should 
not  be  set  aside].' 

[The  following  is  the  description  of  the  said  real  prop- 
erty, to  wit  (insert  description).] 

Dated ,  18—. 

L.  W.  R.,  Attorney -General 
[or  District  Attorney  of County]. 


No.  1103. 
Order  Confirming  Inquisition. 

(Code  Civ.  Pro.,  §2114.) 

[At,  etc.^  as  in  form  No.  80.] 
[Title  of  proceeding.] 
The  writ  of  assessment  of  damages  heretofore  issued  in 

'  Tlie  clause  in  brackets  may  be  in-  paper  printed  al  Albany,  in  which  le- 

serted  instead  of  the  clause  in  regard  gal  notices  are  required  to  be  published. 

to  confirmation,  if  the  governor  so  di-  (Id.) 

rects.     (Code  Civ.  Pro. ,  §  2112.)  See,  also,  as  to  publication  of  notices 

The  notice   must  be  published  at  required  to  be  published  in  State  paper, 

least  once  in  each  week,  for  three  sue-  after  the  expiration   of    the   existing 

cessive  weeks,  in  a  newspaper  printed  contract,  note  1,  p.  520,  to  form  No. 

in  the  county,  and  also  in  the  news-  650. 


Writ  of  Assessment  of  Damages.  987 

tlie  above  entitled  proceeding,  having  been  duly  executed 

by  the  sheriff  of county,  as  required  by  law,  and 

the  said  slieriff  having  duly  tiled  in  the  county 

clerk's  office,  on  the day  of ,  18 — ,  the 

inquisition  taken  i)ursuant  to  the  requirements  of  said  writ, 
together  with  his  return  thereto,  and  due  notice  having  been 
given  of  this  application  by  publishing  a  notice  thereof  in 
the  form,  and  for  the  time,  required  by  law  : 

Now,  upon  the  application  of  L.  W.  R.  [attorney-gen- 
eral, for  the  people  of  the  State  of  New  York],'  and  after 
hearing,  etc.: 

It  is  hereby  ordered,  upon  reading,  etc.  [name  the  papers 
upon  which  the  application  is  made  and  op2:)osed],  that  the 
j)eople  of  [the  State],  upon  paying  into  court  the  damages 
assessed  by  the  said  inquisition,  shall  be  entitled  to  an  ab- 
solute estate  in  the  real  property  described  in  the  said  writ, 
and  in  the  appurtenances  belonging  thereto  [of  which  said 
real  estate  the  following  is  the  description,  to  wit  (describe 
same)"]'. 

No.  1104. 

Petition  for  Moneys  Paid  into  Court  under  Writ  of  Assess- 
ment of  Damages. 

(Code  Civ.  Pro.,  §2118.) 

To  the  Appellate  Division  of  the  Supreme  Court,  in  the 

Department : 

The  i)etition  of  A.  B.,  of ,  respectfully  shows, 

that  heretofore  an  ai^plication  was  made  by  the  attorney- 
general  of  this  State  [or  by  the  district  attorney  of  the 

county  of ,  in  this  State]  for  a  writ  of  assessment 

of  damages  to  assess  the  damages  which  the  owner  [or 
owners]  of  the  real  property  hereinafter  described  would 
sustain  by  being  deprived  of  said  real  property. 

That  such  proceedings  were  had  on  such  application,  that 

'  See  sections  2104,  2119,  Code  CLv.  the  inquisition  is  in  any  respect  exces- 

Pro.  sive,  unjust  or  otherwise  materiiilly 

"  The  description  of  the  property  is  defective,  set  aside  the  writ  and  order 

perhaps  unnecessary,  but  seems  proper  a  new  writ  to  issue,  or  another  incjui- 

to  be  inserted.  silion    taken   to    supi)Iy    the   defecLs. 

=  The  court  may,  if  it  determines  that  (Code  Civ.  Pro.,  ^  21  ly.) 


988  Forms  Relating  to 

on  the day  of ,  18 — ,  the  inquisition  made 

pursuant  to  law  in  such  proceedings  was  filed,  with  the  re- 
turn of  the  slierilT  of county,  to  whom  the  writ  of 

assessment  of  sucli  damages  had  been  issued,  in  the 

county  clerk's  office,  a  copy  of  which  inquisition  is  hereto 
annexed. 

That  by  said  inquisition  the  amount  of dollars 

was  awarded  to  your  petitioner  as  damages  for  the  taking 
of  [a  portion  of]  the  real  property,  described  in  said  writ 
and  inquisition,  as  appears  by  said  inquisition, 

Tliat  an  order  confirming  said  inquisition  was  duly  made 

at,  etc.,  on  the day  of ,  18 — ,  and  dnclaring 

that  the  people  of  the  State,  upon  paying  into  court  the 
amount  of  the  damages  assessed  by  the  inquisition,  should 
be  entitled  to  an  absolute  estate  in  the  real  property  de- 
scribed in  said  writ  and  in  the  appurtenances  belonging 
thereto  ;  that  said  amount  was  accordingly  paid  into  court, 

and  to  the  county  treasurer  of county,  on  the 

day  of ,  18 —  [and  was  afterwards  invested  as  fol- 
lows, under  the  order  of  this  court  (state  how  invested  and 
the  income  derived  therefrom)]. 

And  your  petitioner  therefore  prays,  that  payment  may 

be  made  to  him  of  the  said  sum  of dollars,  awarded 

to  him  by  the  said  inquisition  and  so  paid  into  court,  as 
aforesaid,  and  the  income  thereof  remaining  uninvested' 
[or  that  the  securities  aforesaid  in  which  said  amount  has 
been  invested  as  aforesaid  may  be  transferred  to  him],  and 
your  petitioner  will  ever  pray,  etc. 

Dated ,  18—. 

A.  B. 

[Verification  as  in  form  No.  52.] 


Article  Seventh. 


FORMS  RELATING  TO  THE  WRIT  OF  CERTIORARI,  TO  REVIEW 
THE  DETERMINATION  OF  AN  INFERIOR  TRIBUNAL. 

(Code  Civ.  Pro.,  Ch.  16,  Tit.  2,  Art.  7.) 

No.  1105.     Writ  of  certiorari  to  supply  defect  in  record. 

1106.     AflBdavit  on  application  for  writ  of  certiorari  to  review. 


*  Either  principal  or  income  or  both  the  money  paid  into  court  is  not  made 

may    be    applied    for   in    whole  or  in  as  prescribed  in  said  section  2118,  the 

part.     (Code  Civ.  Pro.,  §  2118.)     See,  appellate  division  of  the  supreme  court 

also,   amendments  to  that  section  by  in  that  judicial  department  may  pro- 

ch.  946  of  Laws  of  1895,  taking'  effect  vide,  by   order,    for   the   investment, 

Jan.  1,   1896.     If  an   application   for  under  the  direction  of  the  court,  of  the 


Certioraei  to  Review.  989 

No.  1107.  Notice  of  such  application, 

1108.  Writ  of  certiorari  to  review. 

110^.  Alfidavit  of  service  of  writ  of  certiorari  to  review. 

1110.  Return  to  writ  of  certiorari  to  review. 


No.  1105. 
Writ  of  Certiorari  to  Supply  Defect  in  Record. 

(Code  Civ.  Pro.,  i^  2124.) 

As  in  form  IN'o.  1108  to  [*J,  and  from  thence  as  follows: 
In  a  certain  appeal  now  pending  in  this  court,  in  [describe 
action  or  proceeding],  it  is  necessary  in  order  to  snpply  a 
defect  [etc.]  in  the  record  \or  name  other  pajDers]  before  this 
court,  that  the  record  \or  papers]  hereinafter  mentioned  and 
described  should  be  produced  in  this  court,  and  justice  re- 
quires that  the  said  defect  [etc.]  should  be  supplied,  and 
adequate  relief  cannot  be  obtained  by  means  of  an  order : 

Now,  therefore,  we  do  command,  and  strictly  enjoin  you, 
that  you  do  certify  and  return  to  this  court,  at  a  term  of  the 
Appellate  Division  thereof,  to  be  held  at,  etc.,  on,  etc.,  under 
your  hand,  the  [describing  record  or  papers],  as  fully,  etc. 

[Conclude  as  in  form  No.  1108.'] 


No.  1106. 
Affidavit  on  Application  for  Writ  of  Certiorari  to  Review. 

(Code  Civ.  Pro.,  §3127.) 

County,  ss.: 

A.  B.  of ,  being  duly  sworn,  says,  that  [here  set 

forth  the  proceedings,  showing  a  proper  case  for  the  issuing 
of  the  writ].' 


[Jurat  as  in  form  No.  46.] 


A.  B. 


money,   and  of  the   interest  to   arise  upon  an  affidavit  or  a  verified  petition, 

therefrorn,  in  permanent  securities,  for  which  may  be  accompanied  by  other 

the  benefit  of  Ihe  owners.     (Code  Civ.  written  pnwf;  and  mu.st  show  a  i)r()i)er 

Pro.,  §  2117,  as  amended  l<y  ch.  94i5  case  fortheissiiiiif);- of  the  wi-it.     Itcan 

of  Laws  of  1805,  taking  effect  Jan.  1,  be  granted  only  at  a  teiin  of  the  appel- 

l^'"j)  late  division  of  the  Kupreme  Court  or 

'  8ee  Graham  v.  The  People  (6  Lans.,  at  sjiecial  term,  and  the  granting  oj-  re- 

14ft).  Kaiioune  v.  Martin  (3  Sandf.  [H.  fusal  thereof  is  (Hacrelionary  with  the 

C]  R.,  59;^),  People  V.  Caricetni(7  Abb.  court.     (Ccxhi    Civ.    Pro..    §    2127,    as 

Pr.,  271  ;  H.  C,  If)  N.  Y.,  fjOl),  Kweet  amended  by  ch.  !I46  of  Laws  of  1895, 

V.  Overseers  of  Clinton  (3  Johns.,  23)  taking  (■(iect  Jan.  1,  189(;.) 

"The  api)lication  must  be  foundtid  Article  7  of  title  2  of  chai)ter  16  of 


990  Forms  Relating  to 

No.  1107. 
Xotioe  of  Application  for  Writ  of  Certiorari  to  Review. 

(Code  Civ.  Pro.,  §  2128.)  * 

As  in  form  No.  170  substantially  to  [*],  and  from  thence 
as  follows :  For  an  order  that  a  writ  of  certiorari  issue, 
directed  to  [state  body  or  officer,  etc.],  commanding  said 
[board,  etc.],  to  [state  substance  of  requirements  of  the 
writ],  and  for  such  other  or  further  relief  as  may  be  proper ; 
that  such  application  will  be  made  upon  [name  the  papers]^ 
with  copies  of  which  you  are  herewith  served.' 

Dated ,  18—. 

Yours.,  etc., 

A.  M.,  Attorney  for . 


To  G.  C,  etc. 


[Office  address.'] 


No.  1108. 
Writ  of  Certiorari  to  Review. 

(Code  Civ.  Pro.,  §  2129.) 

The  People  of  the  State  of  New  York  \on  the  relation  of 
C.  D.],'  to  [piamlng  the  body  or  officer  or  person  having 
custody  of  the  record,  or  other  papers^  to  he  certified, 
or  hoth,  if  necessary^ : ' 

Whereas,  [*]  we  have  been  informed,  by  the  affidavit  [or 

verified  petition]  of  C.  D.,  dated  on  the  day  of 

,  18 — ,  that  certain  proceedings  were  had  [before 

Code  Civ.  Pro. ,  is  not  applicable  to  a  ^  See  note  2  to  form  No.  122. 

•writ  of  certiorari   brought  to  review  '  See  Code  Civ.  Pro.,  §  1994. 

a  determination  made  in  any  criminal  *  See,  further,  as  to  direction  of  writ, 

matter,  except  a  criminal  contempt  of  section  2129,  Code  Civ.  Pro.,  and  The 

court.     (Id.,  g  2148.)  People  v.  Board  of  Comm'rs,  etc.  (97 

See,  also.  People  v.  Tax   Commis-  N.  Y.,  37),  People  v.  Walter  (68  N.  Y., 

sioners  (77  K  Y.,  605),  People  v.  Fire  403;  rev'g  S.  C,  2  Hun,  385),  Matter 

Commis-sioners  (85  N.  Y. ,  655),  People  of  Leary  (30  Hun,  394),  People  v.  Asses. 

V.  Police   Commissioners  (86  N.  Y.,  sorsof  Herkimer  (6  Civ.  Pro.  [Browne], 

639),  Jones  v.  People  (79  N.  Y.,  45),  297);  and  as  to  what  the  terms  "body 

as  to  discretion.  or  officers"  and  the  word  "  dctermina- 

'  See  as  to  service  of  this  notice,  and  tion"  include,  see  section  2146  (id.), 

upon  whom,  when  required  by  court.  As  to  seal,  see  the  case  last  cited,  and 

Code  Civ.  Pro.,  §  2128;  see,  also,Peo-  section  1992,  Code  Civ.  Pro. 
pie  V.  Perry  (16  Hun,  461). 


Certioeaei  to  REvrEW.  991 

you],  (state  the  proceedings  of  which,  complaint  is  made)' 
and  we  being  willing,  for  certain  reasons,  to  be  certitied  of 
such  proceedings,  if  any  such  were  had  [before  you],  do  com- 
mand and  strictly  enjoin  you  that  you  do  certify  and  return 
those  proceedings,  with  all  things  apj^ertaining  thereto, 
within  twenty  days  after  the  service  upon  you  of  this  writ, 

at  the  office  of  the  clerk  of county  [or  name  other 

clerk's  office],'  under  your  hand,  as  fully  and  amply  as  the 
same  remain  before  you,  so  that  our  [Supreme] '  Court  may 
further  cause  to  be  done  thereupon  what  of  right,  and  ac- 
cording to  law,  ought  to  be  done,  and  have  you  then  there 
this  writ.* 

Witness,  etc.  [teste]. 

[L.  s.]  J.  L.,  Clerk. 

G.  H.,  Attorney  for . 

[Allowance  as  in  form  No.  1052.] 


^o.  1109. 
Affidavit  of  Service  of  Writ  of  Certiorari  to  Review. 

(Code  Civ.  Pro.,  §2130.) 

Under  subdivision  1 : 

Same,  substantially,  as  affidavit  of  service  of  summons. 
(See  forms  73,  etc.) 

Under  subdivision  2 : 

As  in  form  No.  73  to  and  including  word  New  York,  and 
from  thence  as  follows :  He  served  the  writ  of  certiorari,  a 
copy  of  which  is  hereto  annexed,  upon  the  [judges  of  the} 

'  A  certiorari  should  name  the  par-  ing  of  writ,  see  Code  Civ.  Pro.,  §  2131, 

ties  ag-pi-ieved  and  set  forth  the  cause  People  v.  Aldermen  (10   Abb.  N.  C, 

of  complaint.     {Ex  parte  the  Mayor,  33).  People   v.    Supervisors  of  Ulster 

etc.,  of  Albany,  23  Wend.,  277.)  (19  Week.  Dig.,  208). 

*  See  Code  Civ.  Pro.,  §  LiI32.  Aa  to  place  and  notice  of  hearing  and 
'  A  writ  of  certiorari  can  be  iaf=ued  papers  upon  which  it  is  to  be  heard, 

only  out  of  the  Supreme  Court,  except  pee  sections  2138,  as  amended  by  ch. 

in  a  case  where  another  court  is  ex-  946  of  Lawsof  189.o,  taking  effect  Jan. 

pressly  authorized  by  statute  to  issue  1,  1S96,  and  2139,  Code  Civ.  Pro. 

it.   (Code  Civ.  Pro.,  §  2123,  as  amended  As  to  questions  to  be  determined  by 

by   ch.  94tj   of  Laws   of  1895,  taking  the  court  upon  the  hearing,  see  Code 

eflre:;t  Jan.  1,  189G).     See,  also,  section  Civ.  Pro.,  §  2140.      People  v.  French 

2124  (id.).      ^  (^!2  N.  Y.,    306),  People   v.    Hair   (29 

*  As  to  limitation  of  time  for  grant-  Hun,  125),  People  v.  Jourdnn  (13 
ing  writ,  see  sections  2125,  2126,  Code  Week.  Dig.,  207),  People  v.  Boanl  of 
Civ.  Pro.,  and  see  nmeiidinents  to  the  Fire  Comm'rs  (30  lluii,  37tj),  I'eople 
latter  section  by  ch.  946  of  Laws  of  v.  Weaver  ('.'0  Week  Dig.,  565),  Peo- 
189.'),  taking  effect  Jan.  1,  1896,  pie  v.  Zoll  (97  N.  V..  203). 

As  to  stay  of  proceedings  upon  issu-         As  to  cases  in  which  the  writ  may. 


992 


Forms  Relating  to 


Court  to  whom  it  is  direcfeed,  by  filing  tlie  said  writ 

with  the  clerli  of county  [or  name  other  clerk],  at 

the  othce  of  said  clerk  in  said . 

Under  subdivision  8  : 

Same,  substantially,  as  form  No,  1082. 

[Signature,  etc.,  as  in  form  No.  73.] 


No.  1110. 


Return  to  Writ  of  Certiorari  to  Review. 

(Code  Civ.  Pro.,  §  2134.) 

[Title  of  proceeding.] 

The  return  of to  the  writ  of  certiorari  [a  copy  of 

which  is]  hereto  annexed. 

By  virtue  of,  and  in  obedience  to,  the  writ  of  certiorari 
[a  copy  of  J  which  is  hereto  annexed,  and  to  me  directed,  I 
do  hereby  certify  and  return  to  the  [Supreme]  Court,  that 
1  have  annexed  hereto,  and  file  herewith,  a  transcript,  certi- 
fied by  me,  of  the  record  [or  proceedings  (and  a  statement  of 
the  other  matters)]  specified  in,  and  required  by,  said  writ. 

In  witness  whereof,  I  have  hereunto  set  my  hand  and  seal, 

this day  of ,  18—.' 

[L.  s.]  0.  M.  [official  title  J. 


and  may  not,  issue,  see  Code  Civ.  Pro., 
sections  2120,  2121,  2122.  2147,  2148  ; 
and  among  oih'^r  recent  cases  relating 
to  the  writ  and  proceedings  thereupon, 
see  Dows  v.  Village  of  Irvington  (66 
How.  Pr.,  93),  Peoi)le  v.  Fairman  (17 
Week.  Dig.,  168),  People  v.  Cobb  (14 
Abb.  N.  C,  493),  People  v.  Sweet  (18 
Week.  Dig.,  258),  People  v.  Heddon 
(32  Han,  299),  People  v.  Campbell  (50 
Super.  Ct.  R.,  82),  People  v.  Fire 
Comni'rs  (96  N.  Y.,  544),  People  v. 
Pond  (13  Abb.  N.  C,  1),  People  v.  Tax 
Comm'rs  (10  id.,  35),  Matter  of  Lauter- 
jiing  (48  Super.  Ct.,  308),  People  v. 
Dennison  (28  Hun,  328),  People  ex  rel. 
Trustees  of  Jamaica  v.  Supervisors  of 
Queens  (131  N.  Y.,  468),  People  ex  rel. 
Edison  Electrical  Illuminating  Co.  v. 
Barker  (139  id.,  55),  People  ex  rel. 
Biirby  v.  Common  Council  of  Auburn 
(85  Hun,  601),  People  ex  rel.  Super- 
visors of  Chenango  v.  Board  of  State 
Assessors  (22  Week.  Dig.,  453),  People 
ex  rel.  Kent  v.  Board  of  Fire  Comm'rs 


(100  N.  Y.,  82),  People  ex  rel.  Albany 
&  Greenbush  Bridge  Co.  v.  Weaver 
(34  Hun,  321;  appeal  dismissed,  99  N. 
Y.,  657),  People  ex  rel.  Mayor,  etc.,  of 
N.  Y.  V.  McCarthy  (102  N.  Y.,  630). 
People  ex  rel.  Panama  R.  Co.  v.  Com'rs 
of  Taxes  of  N.  Y.  (104  id.,  240),  People 
ex  rel.  Flanagan  v.  Police  Comm'rs  of 
N.  Y.  (93  id.,  97),  People  ex  rel.  Wvatt 
v.  Williams  (17  Abb.  N.  C,  366),  Peo- 
ple ex.  rel.  Walkill  Valley  R.  Co.  v. 
Keator  (36  Hun,  572),  People  ex  rel. 
Gibson  v.  French  (16  State  Rep  , 
1012),  People  ex  rel.  Cushman  v.  Hed- 
don (32  Hun.  290),  People  ex  rel.  Dre- 
vot  V.  Fire  Comm'rs  of  N.  Y.  (30  id., 
396),  People  ex  rel.  Kent  v.  Fire 
Comm'rs  (1  Central  Rep.,  107).  People 
ex  rel.  Eckerson  v.  Chi-istie  (115  N.Y., 
158),  People  ex  lel.  Paddock  v.  Lewis 
(55  Hun,  521),  People  ex  rel.  Leo  v. 
Hill  (126  N.  Y.,  497),  People  ex  rel. 
Am.  Contracting,  etc.,  Co.  v.  Wemple 
(60  Hun,  225),  People  ex  rel.  Cook  v. 
Hildrelh  (126  N.  Y.,  360),  People  ex  rel. 


Forms  Relating  to 


992a 


Higgins  V.  Grant  (58  Hun,  15S),  Peo- 
ple ex  rel.  Davidson  v.  Gilon  (126  N. 
v.,  147),  People  ex  rol.  Brush  Electric 
Mfg.  Co.  V.  Wemple  (129  id.,  543), 
People  ex  rel.  Trustees  of  Jamaica  v. 
Super%'isor3  of  Queens  (131  id.,  468), 
People  ex  rel.  Edison  Electi-ic  Illumi- 
nating Co.  V.  Barker  (139  id.,  55), 
Matter  of  Corwin  (135  id.,  245),  People 
ex  i-el.  Blakeslee  v.  Comm'rs  of  Land 
Office  (id.,  447),  People  ex  rel.  Equit- 
able Ga3  Light  Co.  v.  Barker  (66  Hun, 
21;  aff'd  without  op.,  137  N.  Y.,  544), 
People  ex  rel.  Press  Pub.  Co.  v.  Mar- 
tin (142  id.,  22S),  People  ex  rel.  Russell 
V.  Fire  Comm'rs  of  Saratoga  Springs 
(76  Hun,  146),  People  ex  rel.  Taylor  v. 
Forbes  (143  N.  Y.,  219),  People  ex  rel. 
Copcutt  V.  Board  of  Health  of  Yonkers 
(140  id.,  1),  Matter  of  Tiffany  &  Co. 
(80  Hun,  486),  Matter  of  Winegard 
(78  id.,  58),  People  ex  rel.  Dreicer  v. 
Ouderkirk  (76  id.,  119),  Beardslee  v. 
Dolge  (143  N.  Y.,  160),  People  ex  rel. 
Heiser  v.  Gilon  (76  Hun,  346),  People 
ex  rel.  Oppenheimer  Pub.,  etc.,  Co.  v. 
Pople  (81  id.,  383),  People  ex  rel. 
Taylor  v.  Seaman  (8  Misc.,  152),  Peo- 


j-ile  ex  rel.  Forest  Commission  v. 
Campbell  (82  Hun,  338),  People  ex 
rel.  Barnes  v.  Court  of  Sessions  (id  , 
242),  People  ex  rel.  Western  N.  Y.  & 
P.  R.  Co.  V.  Adams  (88  id.,  122),  Peo- 
ple ex  rel.  Schaeffler  v.  Barker  (87  id., 
194),  People  ex  rel.  Wilson  v.  Medical 
Society  of  Dutchess  Co.  (84  id.,  445), 
People  ex  rel.  Hecker,  etc..  Mining 
Co.  V.  Barker  (147  N.  Y.,  31),  People 
ex  rel.  Hanford  v.  Thayer  (88  Hun, 
13G),  Jordan  v.  Board  of  Education 
(14  Misc.,  119),  People  ex  rel.  Spencer 
V.  Village  of  New  Rochelle  (S3  Hun, 
195),  People  ex  rel.  Wechsler  v.  Hark- 
ness  (84  id.,  445),  People  ex  rel.  Cora. 
Mut.  Ins.  Co.  V.  Tax  Comm'rs  (144  N. 
Y.  483),  People  ex  rel.  Goodwin  v. 
Martin  (82  Hun,  ]),  People  ex  rel. 
Keller  v.  Many  (89  id.,  138),  People 
ex  rel.  Kelly  v.  Scott  (86  id.,  174), 
People  ex  rel.  Burby  v.  Com.  Council 
of  Auburn  (85  id  ,  601),  People  ex 
rel.  Dexter  v.  Palmer  (86  id.,  513), 
Matter  of  Fitch  (147  N.  Y.,  334). 
People  ex  rel.  Gould  v.  Barker  (14 
Misc.,  586),  People  ex  rel.  Canaday  v. 
Williams  (90  Hun,  501). 


Insolvent  Debtors  and  Peisoners. 


993 


CHAPTER  XVII. 


FORMS   RELATING  TO   CERTAIN  PROCEEDINGS  INSTITUTED 
WITHOUT  WRIT. 


Forms  relating  to  proceedings  relating  to  insolvent  debtors  ana 
to  prisoners. 

Forms  relating  to  summary  proceedings  to  recover  the  posses 
sion  of  real  property. 

Forms  relating  to  proceedings  to  punish  a  contempt  of  court, 
other  than  a  criminal  contempt. 

Forms  relating  to  proceedings  to  collect  a  fine. 

Forms  relating  to  proceedings  to  discover  the  death  of  a  tenant 
for  life. 

Forms  relating  to  proceedings  for  the  appointment  of  a  com- 
mittee of  the  person  and  the  property  of  a  lunatic,  idiot  or 
habitual  drunkard,  and  to  general  powers  and  duties  of  the 
committee. 

Forms  relating  to  proceedings  for  the  disposition  of  the  real 
property  of  an  infant,  lunatic,  idiot  or  habitual  drunkard. 

Forms  relating  to  arbitrations. 

Forms  relating  to  proceedings  to  foreclose  a  mortgage  by  adver- 
tisement. 

Forms  relating  to  proceedings  to  change  the  name  of  an  indi- 
vidual. 

Forms  relating  to  proceedings  for  the  voluntary  dissolution  of 
a  corporation. 

Forms  relating  to  proceedings  supplementary  to  an  execution 
against  property. 

TITLE  I. 

FORMS    RELATING    TO    INSOLVENT    DEBTORS   AND    TO 
PRISONERS. 

Article  First. 

FORMS  RELATING  TO  PROCEEDINGS  FOR  DISCHARGE  OF  AN 
INSOLVENT  FROM  HIS  DEBTS. 

(Code  Civ.  Pro.,  Ch.  17,  Tit.  1,  Art.  1.) 

Petition  for  discharge  of  insolvent  debtor. 

Consent  of  creditor  to  discharge,  to  be  annexed  to  petition  with 

affidavit  thereto. 
Schedule  to  be  annexed  to  petition  of  insolvent  debtor. 
Affidavit  of  debtor  to  be  annexed  to  his  .schedule. 
Order  to  show  cause  why  petitioner  should  not  ])e  discharged  from 

bis  debts. 

125 


TITLE  L 

TITLE  II. 

TITLE  III. 

TITLE  rV. 

TITLE  V. 

TITLE  VI. 

TITLE  VII. 

TITLE  VIII. 

TITLE  IX. 

TITLE  X. 

TITLE  XI. 

TITLE  XII, 


No. 


nil. 

1112. 

1113. 
1114 
1115 


994  Forms  Relating  to 

No.  1116.  Afflda\it  of  service  of  order  to  show  cause. 

1117.  Affidavit  of  jniblication  pursuant  to  order. 

1118.  Spt'tilication  by  creditor  of  objections,  and  demand  of. jury. 

1119.  Order  directing  trial  by  jury  of  questions  of  fact. 

1120.  Affidavit  to  procure  order  for  petitioner  to  produce  his  non-resident 

wife. 

1121.  Order  requiring  the  petitioner  to  bring  his  wife  before  the  court  as 

a  witness. 

1122.  Order  directing  the  execution  of  an  assignment  by  an  insolvent 

debtor. 

1123.  Assignment  b}*  debtor  to  trustees  pursuant  to  order. 

1124.  Certificate  of  trustee  that  assignment  has  been  made. 

1125.  Certificate  of  county  clerk  of  recording  of  assignment. 

1126.  Order  granting  discharge  of  insolvent  debtor. 

1127.  Discharge  of  insolvent  debtor. 

1128.  Affidavit  upon  refusal  of  trustee  to  give  certificate,  etc. 

1129.  Order  to  show  cause  upon  affidavit,  No.  1128. 

1130.  Order  upon  return  of  order  to  show  cause.  No.  1129. 

1131.  Affidavit  to  move  for  order  directing  judgment  to  be  cancelled,  etc. 

1132.  Notice  of  application  for  cancellation  and  discharge  of  judgment. 

1133.  Order  for  cancellation  and  discharge  of  judgment. 


No.  nil. 

Petition  for  Discharge  of  Insolvent  Debtor. 

(Code  Civ.  Pro.,  ,§2151.) 

To  the   County   Court  of   the   county  of [or   to  the 

Supreme  Court\ : 

Tho  petition  of  A.  B.  respectfully  shows,  that  he  resides 

in  the of ,  in  the  county  of ,  and 

State  of  New  York. 

That  he  is  unable  to  pay  all  his  debts  in  full. 

That  he  is  willing  to  assign  his  property  for  the  benefit 
of  all  his  creditors,  and,  in  all  other  respects,  to  comply 
with  the  provisions  of  article  first  of  title  first  of  chapter 
seventeenth  of  the  Code  of  Civil  Procedure,'  for  the  pur- 
pose of  being  discharged  from  his  debts. 

And  your  petitioner  prays  that  he  may  be  discharged  ac- 
cordingly, f 

Dated ,  18—. 

A.  B. 

*  See  Code  Civ.  Pro.,  §  3344.     As  to  Bection     2150,    Code    Civ.     Pre,     as 

residence,  see  Matter  of  Dimock  (11  amended  by  ch.  946  of  the   Laws  of 

Misc  ,  610).    Aa  to  the  courts  to  which  1895,  taking  effect  Jan.  1,  1896. 
the    application  may    be    made,  see 


Insolvent  Debtoks  and  Peisonees.  995 

County,  ss.  : 

A.  B.,  of ,  being  duly  sworn,  says,  that  he  is  the 

petitioner  mentioned  in  the  foregoing  petition  subscribed 

by  him  ;  that  said  petition  is,  in  all  respects  true,  in  matter 

of  fact.' 

A.  B. 

[Jurat  as  in  form  No.  46.  J 

[Annex  schedule  form  No.  1113,  and  consents  of  creditors 
as  in  form  No.  1112,  and  affidavit  as  in  form  No.  1114.] 


No.  1112. 

Consent  of  Creditor  to  Discharge  to  he  Annexed  to  Petition 
with  Aflfidavit  Thereto. 

(Code  Civ,  Pro.,  §§  2152,  2160.) 

I,  C.  B.,  residing  in  the of ,  in  the  county 

of -,  and  [State  of  New  York]  in  the  United  States, 

do  [or  The  (name  of  corporation,  etc.),  located  and  having 

its  principal  place  of  business  at ,  in  the  county  of 

,  and  (State  of  New  York)  in  the  United  States  does], 

hereby  consent  to  the  discharge  of  A.  B  ,  the  petitioner 
named  in  the  annexed  petition,  from  his  debts,  upon  his 
complying  with  the  provisions  of  article  first  of  title  first 
of  chapter  seventeenth  of  the  Code  of  Civil  Procedure. 

And  1  hereby  relinquish  [or  The  (name  of  corporation, 
etc.,  hereby  relinquishes)]  the  mortgage  [etc.]  given,  etc., 

on,  etc.,  for  the  payment  of  the  sum  of  • dollars, 

mentioned  in  my  affidavit  annexed  hereto,  so  far  as  the  same 
affects  real  or  personal  property  belonging  to  the  said  A.  B., 
or  transferred  by  him  since  the  lien  of  said  mortgage,  etc., 
was  created  to  the  trustees  to  be  appointed  pursuant  to  said 
petition,  for  tlie  benefit  of  all  the  creditors  of  said  A.  B." 

[Annexed  hereto  are  (sworn  copies  of  the)  original  ac- 
counts, etc.^] 

In  witness  whereof,  I  have  hereunto  set  my  hand  [and 
afiixed  the  common  seal  of  said  (name  of  corporation,  etc.)], 
being  duly  authorized  for  that  i)ui'pose,  by  the  order  of  the 

'The   affidavit  must  he  verified  on  Hildreth   (5   Hun,    364),   Wheeler  v. 

the  day  of  the  jn-epeiitation  of  the  peti-  Emnieleuth  (i'S  id.,   369,  uffd  without 

tion.     (Co<le  Civ.  Pro.,  §  2151  )     See,  op  ,  125  N.  Y  .  750),  Starr  v.  Patter- 

alHo,  People  ex  rel.  Kenyoii  v.  Sutlier-  Koti  (J7  Abh.   N.  C,  lli). 

land  (SI  N.  Y.,  1,  revV  «•  C.,  16  Hun,  '^S.-e  Code  Civ.  Pro.,  §  2158.     Augs- 

192),  Morrow  v.  Freeman  (Gi  id.,  515),  biiiy  v.  CroHsiniin  (10  Hnn,  3S0). 

Schaefler  v.  Sonle  (23   Hnn,  5S3,  alf'd  '  A  cotiHentinjf  creditor  reBldinjfwith- 

withont  oj).,  85  N.  Y.,  645).  Parni's  v.  out  the  State,  and  within   \\u:   United 

Gill  (13  Ahl).  Pr.,  N.  H.,  160),  Mills  v.  Staten,  niu.st  annex  to  his   consent   the 


996  Forms  Relatino  to 

board  of  directors  of  said ,  on  tliis day  of 

,18-. 

[Seal  of  corporation.]  C.  D.  ^Director,  etc.] 

. County,  ss.: 


C.  B.,  being  duly  sworn,  says,  that  lie  resides  [or  that 

the is  a  corporation  duly  organized  for 

purposes  under  the  laws  of  the  State  of  [New  York]  and 
is  located  and  has  its  principal  place  of  business]  at  the 

of 5  in  the  county  of ,  and  State 

of  [New  York.] 

That  A.  B.,  the  petitioner  named  in  the  annexed  petition, 

is  justly  indebted  to  him  [or  to  the  said ]  [or  will 

become  justly  indebted  to  him  {or  to  the  said ),  on 

the day  of ,  18—],  in  the  sum  of 

dollars,  ujDon  a  certain  promissory  note  [etc.],  in  writing,* 
made,  etc.,  the  general  ground  or  consideration  of  which 
is  as  follows,  to  wit  [state  same]. 

[That  he  derived  {or  that  said derived)  title  to 

said  note  (etc.)  from  E.  F.,  and  that  he  {or  that  said  E.  F., 
or  that  said,  name  of  corporation)  actually,  and  in  good 
faith,  paid  the  said  E.  F.  for  the  said  note  (etc.)  the  sum  of 
dollars.]  p] 

That  neither  this  deponent  [nor  said  (name  of  corpora- 
tion)], nor  any  person,  to  his  [or  to  its]  use,  has  received 
from  the  said  A.  B.,  or  from  any  other  person,  payment  of 
a  demand,  or  any  part  thereof,  in  money,  or  in  any  other 
way,  or  any  gift  or  reward  of  any  kind,  upon  an  express 
or  implied  trust,  confidence  or  understanding  that  he  should 
consent  to  the  discharge  of  the  said  A.  B.* 

[That  he  has  been  duly  authorized  to  make  the  foregoing 
consent  and  relinquishment  by  order  of  the  board  of  direct- 
ors of  said -.] 


[Jurat  as  in  form  No.  46.] 


C.  D. 


original    accounts,    or    sworn    copies  securities,  are  lost,  such  fact  must  be 

thei-eof,  and  the  original  specialties  or  stated  as  a  reason   for   not   annexing 

other  written  securities,  if  any,  upon  thereto   the  consent,  and  the  fact  ol 

which  his  demand  arose  or  depends,  the  loss,  and  the  manner  ot   the    loss 

Provided,  however,  that   when    such  thereof,  must  be  stated  by  the  cred- 

t)riginal   specialties,  or   other  written  iter  to  the  best  of  his  knowledge,  or 


Forms  Relating  to 


996a 


must  be  otherwise  proved  by  affidavit 
to  the  satisfaction  of  the  court ;  and 
the  court  may  thereupon,  in  such  case 
or  proceeding-,  by  its  order,  dispense 
with  the  annexing  to  such  consent  of 
the  original  specialties  or  other  writ- 
ten securities.  (Code  Civ.  Pro., 
§  2161,  as  amended  by  Laws  of  1889, 
ch.  502,  by  adding  words  "Provided, 
etc.") 

*Itmustbe  stated  whether  the  in- 
debtedness arose  upon  written  secu- 
rity. 

*  As  to  affidavit  by  executor,  etc., 
see  last  clause  of  section  2160,  Code 
Civ.  Pro. ;  and  as  to  order  of  surrogate 
or  justice  of  the  Supreme  Court  in 
such  case,  see  section  2153,  id. 

As  to  affidavit  in  case  of  corporation 
or  joint-stock  association,  see  section 
2154,  id.;  in  case  of  partnership,  see 


section  2155,  id.  If  the  affidavit  is 
made  by  an  individual  or  by  an  officer 
of  a  corporation  without  the  State,  it 
may  be  taken  before  an  officer  author- 
ized by  the  laws  of  the  state  to  take 
and  certify  the  acknowledgment  or 
proof  of  deeds,  to  be  recorded  in  the 
State  ;  and  when  certified  by  him  to 
have  been  taken  before  him,  and  ac- 
companied with  the  like  certificates, 
as  to  his  official  cjiaracter  and  the 
genuineness  of  his  signature,  as  are 
required  to  authorize  a  deed  acknowl- 
edged before  him  to  be  recorded  wii  hin 
the  state,  may  be  u?ed  as  if  taken  and 
certified  in  this  State  by  an  officer 
authorized  by  law  to  take  and  certify 
the  same.  (§  844,  id.)  See,  also,  Ross 
V.  Wigg  (34  Hun,  192),  Matter  of  Wil- 
cox's Estate  (1  Misc.,  55). 


Insolvent  Debtors  and  Peisoners. 


997 


No.  1113. 
Schedule  to  be  Auuexed  to  Petition  of  lusolvent  Debtor. 

(Code  Civ.  Pro..  §2162.) 

A  full  and  true  account  of  all  the  creditors  of  A.  B.,  an 
insolvent  debtor,  with  a  statement  of  the  place  of  residence 
of  each  creditor,  if  it  is  known  ;  or,  if  it  is  not  known,  a 
statement  of  that  fact,  the  sum  owing  to  each  of  them  by 
the  said  insolvent,  and  the  nature  of  each  debt  or  demand 
with  the  true  cause  and  consideration  thereof,  the  place 
where  the  same  accrued,  and  a  statement  of  any  existing 
judgment,  mortgage  or  collateral  or  other  secudt}^  for  the 
payment  of  the  debt,  made  pursuant  to  section  2162  of  the 
Code  of  Civil  Procedure.' 


Crsditobs.     Residenck, 


Nature  of  Debt  with  the 
TRUE  Cause  and  Consid-I 

ERATION       TTIEBBOF.       AND    ACCRUED    AT. 

WHETHtR  Arising  upon  ; 
WBITTEN  Securities,  on 
AccouN*  OR  Otherwise. 


Statement  op  any  Existing 
JuD<iMBNT,  Mortgage  or 
Collateral  or  Other 
Security,  for  the  Pay- 

BISNT  OF  ANY  SUCH  DeBT. 


A  full  and  true  inventory  of  all  the  property  of  A.  B., 
an  insolvent  debtor,  in  law  or  in  equity,  of  the  incumbrances 
existing  thereon,  and  of  all  the  books,  vouchers  and  securi- 
ties relating  thereto. 

[Insert  statement  of  same.] 

[For  affidavit  to  be  annexed  to  this  schedule,  see  form 
No.*  1114.] 


'  See  Devlin  v.  Cooper  (20  Hun,  188 ;  of  Cohen  (18  Civ.  Pro.  R.,  15G),Wheeler 

aff'd  S.  C,  84  N.  Y.,  410),   Schaeffer  v.  Einmeleuth  (58  Ilun,  369),  Starr  v. 

V.  Soule  (23  Hun,  .'83),  Dieckerhoff  v.  Patterson  (27  Abb.  N.  C,  19). 
Ahlbom  (2  Abb.  N.  C,  372),  Matter 


998  Forms  Relating  to 

No.  1114. 

Affl<lavit  of  Debtor  to  be  Annexed  to  his  Schedule  (No» 

1H2). 

(Code  Civ.  Pro.,  §  3163.) 

I,  A.  B.,  do  swear  [or  affirmj,  that  the  matters  of  fact, 
stated  in  the  schedule  hereto  annexed,  are,  in  all  respects, 
just  and  true ;  that  I  have  not,  in  contemplation  of  my 
becoming  insolvent,  or  within  two  years  before  presenting 
the  petition  herein,  disposed  of  or  made  over  any  part  of 
my  property,  not  exempt  by  express  provision  of  law  from 
levy  and  sale  by  virtue  of  an  execution,  for  the  future 
benefit  of  myself  or  my  family,  or  disposed  of  or  made 
over  any  part  of  my  property,  in  order  to  defraud  any  of 
my  creditors;  that  I  have  not,  in  any  instance,  created  or 
acknowledged  a  debt  for  a  greater  sum  than  I  honestly  and 
truly  owed  ;  and  that  I  have  not  paid,  secured  to  be  paid, 
or  in  any  way  compounded  with,  any  of  my  creditors,  with 
a  view  fraudulently  to  obtain  the  prayer  of  my  petition; 
that  I  have  not  done,  suffered  or  been  privy  to  any  act, 
matter  or  thing  which,  if  accomplished,  would  be  ground 
for  withholding  my  discharge  under  the  provisions  of  this 
act,  or  invalidate  such  discharge  if  granted.^- 

A.  B. 
Subscribed  and  sworn  to  before  me,  i 

this day  of ,  18 — .      j 

A.  O.,  — County  Judge 

\or  in  the  city  of  New  York  the  judge  holding  the  term 
at  ichich  the  order  to  show  cause  is  made']. 


No.  1115. 

Order  to  Show  Cause  why  Petitioner  should  not  he  Dis- 
charged from  his  Debts. 

(Code  Civ.  Pro.,  |  2164.) 

At  a  term  of  the county  court  held  \or  at  a  Special 

Term  of  the  Supreme  Court  held  in  and  for  the  city 

and  county  of  New  York],  at  the  of , 

in  the  county  of ,  on  the day  of , 

18—. 

Present,  Hon.  J.  C.  N.,' County  Judge  [or  J.  F.  D., 

Justice,  e/c] 

[Title  of  proceeding.] 

On  reading  and  filing  the  petition  of  A.  B.,  of  the 

» See  section  2163  of  Code  of  Civil     of  Laws  of  1896,  taking  effect  May  1, 
Procedure,  as  amended  by  chapter  278     1896. 


Insolvent  Debtors  and  Prisonees.  999 

of ,  ill  the  county  of ,  dated ,  18 — , 

and  the  consents,  schedules  and  affidavits  annexed  thereto, 
it  is, 

Ordered^  that  all  the  creditors  of  the  said  petitioner  show 

cause  before  this  court,  at  a term  thereof  to  be  held 

at,  etc.,  on,  etc.,  wh}^  an  assignment  of  the  said  A.  B.'s  prop- 
erty should  not  be  made,  and  he  be  thereupon  discharged 
from  his  debts,  as  prescribed  in  article  first  of  title  first  of 
chapter  seventeenth  of  the  Code  of  Civil  Procedure. 

And  it  is  further  ordered  and  directed,  that  this  order  be 
published  once  in  each  of  the  ten  weeks  [or  six  weeks] '  im- 
mediately preceding  the  said  day  of ,  18 — , 

in  the  [insert   name  of  a  newspaper   published  in  the 

count}']  a  newspaper  published  at ,  in  said  county 

of [and  in  the ,  a  newspaper  published  in 

the  city  of  New  York].'^ 

And  it  is  further  ordered  and  directed,  that  a  copy  of  this 
order  be  served,  by  said  i^etitioner,  upon  each  of  his  credi- 
tors residing  within  the  United  States,  and  whose  place  of 
residence  is  known  to  him,  either  personally,  at  least  twenty 

days  before  the  said day  of ,  18 — .  or  by 

depositing  it,  at  least  forty  days  before  that  day,  in  the 
l)ost-office,  inclosed  in  a  post-j^aid  \yrapper,  addressed  to 
the  creditor  at  his  usual  place  of  residence.' 


No.  1116. 
Affidavit  of  Service  of  Order  to  Show  Cause. 

(Code  Civ.  Pro.,  §  3166.) 

[Title  of  proceeding.] 
County,  ss.  : 


A.  B.,  of ,  being  duly  sworn,  says,  that  on  the 

'See  section  2165,  Code  Civ.  Pro.,  Albany  in  which  legal  notices  are  re- 

as  amended   by  Laws  of  1890,  chap,  quired  by  law  to  be  published  is  no 

231,  p.  438.  lontrer  necessary. 

*As  to  puVjlication  of  notices  which  ^The  officer  has  no  jurisdiction,  if 

have  been  reqaired  to  be  published  in  in  any  one  of  the  ten  weeks  there  was 

the  State  paper,  after  the  expiration  no  publication,  althouf,'h  there  were  in 

of  the  existinjc   contract,   see  note   1,  nil  ten  jiublications  in  ten  weeks ;  and 

page   520,  to  form  No.   650.     By  the  an  order  for  an  aflsignment  made  in 

amendment  of  section   2165  of  Code  such  a  case  is  a  nullity.     (Dierkerhnff 

Civ.  Pro.,  above  mentioned,  the  pub-  v.  Ahlbnin.  2  Abl)    N.  C.  :}7'J.)     See, 

lication  in  the  new.spaper  jn-inted  at  also,  Bil'iufre  v.  Pic.kert  (39  Hun,  504). 


1000  Forms  Relating  to 

day  of ,  18 — ,  he  deposited  in  the  post- 


office  at ,  copies   of   the  annexed  order  to  show 

cause,  each  inclosed  in  a  post-paid  wrapper,  and  addressed 

as  foHows:  One  of  said  copies  to  I.  J.,  at ,  liis 

usual  place  of  residence;  one  of  said  copies   to  J.  K.,  at 

,  his  usual  place  of  residence,  etc' 

A.  B. 
|.Iurnf  :is  in  form  No.  46.] 

[Proof  of  i)ersonal  service  is  the  same  as  of  personal  ser- 
vice of  summons  in  an  action  in  the  Supreme  Court.  (See 
forms  Nos.  73,  etc.)] 


No.  1117. 
Affidavit  of  Publication  Pursuant  to  Order. 

(Code  Civ.  Pro.,  §  2166.) 

—  County,  ss.  : 


A.  B.,  of ,  being  duly  sworn,  says,  that  he  is,  and 

has  been,  during  all  the  time  hereinafter  mentioned,  the 
printer  [or  foreman  {or  principal  clerk)  of  the  printer]  of 
the  [name  of  nevrspaper],  [^]  a  newspaper  published  at 

the of ,  in  the  said  county  of , 

\or  a  newspaper  published  in  the  city  of  New  York],  and 
that  a  copy  of  the  annexed  order  has  been  publisher  in 
the  said  [name  of  newspaper]  once  in  each  of  the  ten  [or 

six]  weeks'-^  immediately  jjreceding  the day  of 

,    18 — ;   that  said   publication   commenced   on 

the day  of ,  18  — ,  and  terminated  on 

the day  of ,  18 — . 


[Jurat  as  in  form  No.  46.] 


A.  B. 


'See  People  v.   Sutherland    (81  N.     sufficiency   of   service    under  former 
Y.,  1 ;  rev'g  S.  C,  16  Hun,  192),  as  to     statutes. 


^  See  note  2  to  form  No.  1115. 


Insolvent  Debtoks;  and  Pkisoneks.  1001 

No.  1118. 
Specification  by  Creditor  of  Objections  and  Demand  of  Jury. 

(Code  Civ.  Pro..  §  2168.) 

[Title  of  proceeding.  J 

To  the  County  Court  of county  [or  to  the  Supreme  Court  :^\ 

I,  C.  D.,  one  of  the  creditors  of  the  said  A.  B.,  do  hereby 
make  and  specify  the  following  objections  to  the  discharge 
of  said  A.  B  ,  as  an  insolvent  debtor,  to  wit : 

First.  That  the  consents  of  creditors  of  said  A.  B.  having: 
debts  owing  to  them  in  good  faith,  then  dne  or  thereafter  to 
become  due,  and  amounting  to  not  less  than  two  thirds  of 
all  the  debts,  owing  by  the  said  A.  B.  to  creditors  residing 
within  the  United  States  are  not  annexed  to  the  petition 
filed  by  said  A.  B.,  in  this  proceeding. 

Second.  That  the  said  A.  B.,  in  order  to  obtain  his  dis- 
charge, has  procured  E.  F.,  one  of  the  persons  whose  con- 
sent is  annexed  to  said  petition,  to  sign  said  consent  as  a 

creditor  for  the  sura  of dollars  and  upwards,  not 

owing  to  him  b}^  the  said  A.  B. 

Third.  That  [state  any  further  objections  in  detail  which 
the  creditor  may  have]. 

[And  I  demand  a  trial  by  a  jury  of  the  questions  of  fact 
arising  upon  the  foregoing  objections.  J 

Dated ,  18—. 

C.  D. 
County,  ss.: 

C.  D.,  being  duly  sworn,   says,  that  he  resides  in  the 
of ,  in  the  county  of and  State 


of  [New  York],  in  the  United  States,  and  that  he  is  a  credi- 
tor of  A,  B.,  the  petitioner  herein,  in  the  sum  of 
dollars.  2 


[Jurat  as  in  form  No.  46. j 


C.  D. 


•By  amendment  of  section  2151,  of  does  not  appear  in  the  schedule ;  if  the 

the  Code  of  Civil  Procedure,  by  chap-  debt  is  not  set  forth  in  the  schedule 

ter  946  of  Laws  of  189.'J,  taking-  effect  he  must  also  tile  his  aliidavit,  to  the 

Jan.    1,    1896,  th«   Supreme    Court  is  effect   specified    in    subdivisions    first 

substituted  for  the  Court  of  Comuion  aii<l   second  of  section    21  (JO  of  Code 

Pleas  in  the  fity  of  New  York,  as  the  Civ.  Pro.  (§  2109,  id.).     See  form  of  the 

court  to  which  the  application   in  this  latter  affidavit  in  form  No.  J112to(*), 

proff-edirig-  is  to  V)e   ma<le  in  that  city.  For  form  of  order  Sfittlinj,''  and  stat- 

"  Tliis  form  of  affidavit  is  to  l)(;  made  ing-  (iueHti()ns  to    lie   tricil   hy   a  juiy 

in  a  case  where  the  creditor's   name  (§  2109,  id.),  see  form  No.  353. 


1002  Forms  Relating  to 

No.  1119. 
Order  Directing  Trial  by  Jury  of  ^uostious  of  Fact. 

(Code  Civ.  Pro.,  §2168.) 

[At,  etc.,  as  in  form  No.  1115.] 
[Title  of  xn-oceeding.] 

C.  D.,  one  of  the  creditors  of  A.  B.,  an  insolvent  debtor, 
having  filed  with  the  clerk  of  this  court  a  specification,  in 
writing,  of  his  objections  to  the  discharge  of  the  said  A.  B. 
as  an  insolvent  debtor,  and  having  demanded  a  trial  by  a 
jury  of  the  questions  of  fact  arising  thereupon  : 

It  is  hereby  ordered,  that  the  said  questions  of  fact  be 
tried  by  a  jury,  and  that  the  said  jury  be  drawn  in  the  same 
manner  as  for  the  trial  of  civil  causes,  from  the  jurors  sum- 
moned and  attending  this  court. 


No.  1120. 


AfBdayit  to  Procure  Order  for  Petitioner  to  Produce  His 
Non-llesident  Wife. 

(Code  Civ.  Pro.,  §  2171.) 

[Title  of  proceeding.] 
County,  ss.  : 


C.  D.,  of ,  being  duly  sworn,  says,  that  he  is  one 

of  the  creditors  of  A.  B.,  who  is  petitioning  for  a  discharge 
as  an  insolvent  debtor  in  this  proceeding. 

That  M.  B.,  the  wife  of  said  A.  B.,  resides  without  the 

State,  to  wit :  at ,  in  the  State  of . 

C.  D. 

[Jurat  as  in  form  No.  46.] 


No.  1121. 

Order  Requiring  the  Petitioner  to  Bring  his  Wife  Before 
the  Court  as  a  Witness. 

(Code  Civ.  Pro.,  §  2171.) 

[At,  etc.,  as  in  form  No.  1115.] 
[Title  of  proceeding.] 
On  reading  and  filing  the  affidavit  of  C.  D.,  a  creditor  of 


Insolvent  Debtors  and  Prisoners.  1003 

A.  B.,  who  is  petitioning  for  a  discharge  as  an  insolvent 

debtor  in  this  proceeding,  dated ,  18 — ,  by  which  it 

appears  that  M.  B.,  the  wife  of  said  A.  B.,  resides  without 

the  State,  and  at ,  in  the  State  of ,  and 

upon  the  application  of  said  C.  D.  : 

It  is  hereby  ordered,  that  said  A.  B.  be  and  he  is  hereby 
required  to  bring  his  said  wife  before  this  court,  at  the 
hearing  [or  trial]  of  this  proceeding,  to  the  end  that  she 
may  be  examined  as  a  witness. 


No.  1122. 

Order  Directing  the  Execution  of  an  Assignment  by  Insol- 
vent Debtor. 

(Code  Civ.  Pro..  §3174.) 

[At,  etc.,  as  in  form  No.  1115.] 

[Title  of  proceeding.] 

A.  B.,  the  petitioner  herein,  having,  upon  the  return  of 
the  order  to  show  cause  heretofore  granted,  presented  to  the 
court,  and  filed  with  the  clerk,  proof  to  the  satisfaction  of 
the  court,  that  the  said  order  has  been  duly  published  and 
served  as  thereby  required,  and  the  court  having  thereupon 

on  that  day  [or  on  the  day  of ,  18 — ,  to 

which  the  said  proceeding  was  adjourned]  heard  the  alle- 
gations and  proofs  of  the  parties,  and  it  having  appeared 
by  the  verdict  of  the  jury  herein  [or  it  having  appeared  sat- 
isfactorily to  the  court]  that  A.  B.,  who  is  applying  herein 
for  his  discharge  as  an  insolvent  debtor,  pursuant  to  the  pro- 
visions of  article  first  of  title  first  of  chapter  seventeenth 
of  the  Code  of  Civil  Procedure,  is  justly  and  truly  indebted 
to  the  creditors  consenting  to  such  discharge  in  sums  which 
amount,  in  the  aggregate,  to  two-thirds  of  all  the  debts 
which  the  said  A.  B.  owed,  at  the  time  of  presenting  his 
petition,  to  creditors  residing  within  the  United  States  ; 
that  said  A.  B.  has  honestly  and  fairly  .given  a  true  account 
of  his  property,  and  that  he  has,  in  all  things,  conformed 
to  the  matters  required  of  him  by  the  said  article : 

Now,  on  motion  of  C.  P.,  counsel  for  the  said  ])eriti()ner, 
It  is  hereby  ordered  and  dii-ected,  rliat  the  sai(l  A.  B.  exe- 


1004  Forms  Relating  to 

cute  to  M.  N".,  residing  at  the of ,  in  the 

county  of ,  in  this  State  [and  O.  P.,  residing,  etc.],' 

an  assignment,  duly  executed  and  acknowledged  [or  proved] 
and  certihed  in  like  manner  as  a  deed  to  be  recorded  in  the 

county  of ,  of  all  his  property,  at  law  or  in  equity, 

in  possession,  reversion  or  remainder,  and  all  books,  vouch- 
ers and  x^ap<?i's  relating  thereto,"  excepting  only  so  much 
thereof  as  is  exempt  by  law  from  levy  and  sale  by  virtue  of 
an  execution,  for  the  use  and  benefit  of  all  his  creditors. 


No.  1123. 
Assignment  by  Debtor  to  Trustees  Pursuant  to  Order. 

(Code  Civ.  Pro.,  §2177.) 

Know  all  men  by  these  presents :  That  I,  A.  B.,  an  insolvent 
debtor,  did  heretofore,  and  on  the day  of 


1 8 — ,  present  a  petition,  in  writing,  and  duly  verified  to  the 

county  court  of county  [or  to  the  Supreme  Court,'  ] 

praying  for  relief  pursuant  to  the  provisions  of  article  first 
of  title  first  of  chapter  seventeenth  of  the  Code  of  Civil 
Procedure,  to  which  petition  were  annexed  the  schedule 
required  by  said  article,  duly  verified,  and  also  written 
instruments  executed  and  verified  pursuant  to  said  article 
by  my  creditors  residing  in  the  United  States,  having  debts 
owing  to  them,  in  good  faith,  then  due.  or  thereafter  to  be- 
come due,  which  amounted  to  not  less  than  two-thirds  of 
all  the  debts  owing  by  me  to  creditors  residing  within  the 
United  States,  consenting  to  my  discharge  from  my  debts, 
upon  my  complying  with  the  provisions  of  said  article ; 
whereupon  the  said  court  made  an  order  requiring  all  my 
creditors  to  show  cause  before  it,  at,  etc.,  on,  etc.,  why  an 
assignment  of  my  ju'operty  should  not  be  made  and  I  be 
thereupon  discharged  from  my  debts  as  i)rescribed  in  said 
article,  and  directing  the  publication  and  service  of  said 
order  as  required  by  said  article,  which  said  order  was  duly 
published  and  served  as  therein  required,  and  no  good  cause 


»  See  as  to  trustees,  Code  Civ.  Pro.,         'See  note  1,  page  1001,  to  form  No. 
§§  2175,  2176.  1118. 

*  See  Code  Civ.  Pro.,  §§  2175,  2178. 


Insolvent  Debtors  and  Prisoners.  1005 

appearing  to  the  contrary,  and  it  satisfactorily  appearing  to 
the  said  court  that  I  was  justly  and  truly  indebted  to  the 
consenting  creditors,  in  sums  which  amount  in  the  aggregate 
to  two-thirds  of  all  the  debts,  which  1  owed,  at  the  time  of 
presenting  my  said  petition,  to  creditors  residing  within  the 
United  States,  and  that  I  had  honestly  and  fairly  given  a 
truf^  account  of  my  property,  and  had  in  all  things  con- 
formed to  the  matters  required  of  me  by  said  article,  the 
said  court  has,  by  its  order  duly  made  and  entered  on  the 

day  of ,  18 — ,  directed  an  assignment  to 

be  made  by  me  of  all  my  property  to  the  trustee  \or  trustees] 
hereinafter  mentioned  for  the  benefit  of  all  my  creditors 
pursuant  to  the  provisions  of  said  article. 

Now,  therefore,  know  ye,  that,  in  conformity  to  the  said 
direction,  I  have  granted,  released,  assigned  and  set  over, 
and  b}^  these  presents  do  grant,  release,  assign  and  set  over 

unto  M.  N.,  of [and  to  O.  P.,  of ],  the  said 

trustee  [or  trustees],  all  my  property,  at  laAV  or  in  equity, 
in  possession,  reversion  or  remainder,  and  all  the  books, 
vouchers  and  papers  relating  thereto,  excepting  only  so 
much  thereof  as  is  exempt  by  law  from  levy  and  sale  by 
virtue  of  an  execution,  to  hold  the  same  unto  the  said  M„  INT. 
[and  0.  P.],  for  the  benefit  of  all  my  creditors. 

In  witness  whereof,  I  have  hereunto  set  my  hand  and 

seal,  this day  of ,  in  the  year  18 — .' 

A.  B.     [L.  s.] 

Sealed  and  delivered  in  presence  of . 

[Add  acknowledgment  as  in  form  No.  340,  or  proof  as  in 
form  No.  588.] 

'  As  to  recording,  see  section  2175,  niity  -with  the  statute.  (Rockwell  v. 
Code  Civ.  Pro.;  as  to  effect  of  assign-  McGovern,  69  N.  Y.,  294;  distinguish- 
ment,  see  .section  3177  (id.).  ing  Rockwell  v.  Brown,  54  id.,  210.) 

The  assignment  is  invalid  as  a  con-  The  mention  of  a  nominal  pecuni- 
veyance  of  the  insolvent's  estate,  at  ary  consideration  does  not  validate  the 
lea.st  as  against  one  who  is  not  a  bona  assignment,  where  it  appears  by  the 
fide  purchaser  from  the  assignee  for  assignment  itself  that  the  intention  was 
value  without  notice,  where  the  pre-  to  create  a  ."Statutory  trust,  and  to  con- 
liminary  proceedings  upon  whic;h  it  is  vey  no  otlicr  estate;  or  interest  than  waa 
based  are  void  because  not  in  confor-     necessary  for  that  purjiosc.     (Id.) 

See,  also,  Murj^hy  v.  Philbrook  (ft 
N.  Y.  Hupp.,  M3). 


1006  Forms  Relating  to 

No.  1124. 
Certificate  of  Trustee  that  Assignmeut  has  heen  Made. 

(Code  Civ.  Pro.,  ^  2178.) 

I,  M.  N.,  of,  etc.,  do  hereby  certify,  that  A.  B.,  an  insol- 
vent debtor,  has  this  day  granted,  conveyed  and  assigned 
to  nie,  for  the  benefit  of  all  his  creditors,  by  an  assignment, 
in  writing,  duly  executed  and  acknowledged  [or  proved]  in 
like  manner  as  a  deed  to  be  recorded  in  the  county  of 

,  all  his  property  at  law  or  in  equit}'  in  possession, 

reversion  or  remainder,  and  all  the  books,  vouchers  and 
papers  relating  thereto,  excepting  only  so  much  thereof  as 
is  exempt  by  law  from  levy  and  sale  by  virtue  of  an  execu- 
tion, and  that  he  has  delivered  to  me  so  much  thereof  as  is 
capable  of  delivery. 

In  witness  w^hereof.  I  have  hereunto  set  my  hand  and 

seal,  this day  of ,  18 — . 

M.  K     [L.  s.] 

Sealed  and  delivered  in  presence  of . 

[Acknowledgment  as  in  form  No.  340,  or  proof,  as  in  form 
No.  538.J 


No.  1125. 
Certificate  of  County  Clerk  of  Recording  of  Assignment. 

(Code  Civ.  Pro.,  §  2178.) 

State  of  New  York,  ) 
County  of ,      [  *"^-  • 

I,  J.  L.,  county  clerk  of  the  county  of ,  do  hereby 

certify,  that  an  assignment,  in  writing,  by  A.  B.,  an  insol- 
vent debtor,  to  M.  N.  [and  O.  P.],  as  trustee  [or  trustees], 
for  the  benefit  of  all  his  creditors,  duly  executed  and  ac- 
knowdedged  [or  proved]  in  like  manner  as  a  deed  to  be 

recorded  in  the  said  county  of ,  of  all  his  property 

[describing  it,  as  in  form  No.  1124],  dated ,  18 — , 

has  been  duly  recorded  in  my  office  on  the —  day 

of ,  18—. 

In  witness  whereof,  I  have  hereunto  set  my  hand  and 

seal,  on  this day  of ,  18 — . 

[L.  s.]  J.  L.,  Clerk. 


Insolvent  Debtors  and  Prisoners.  1007 

No.  1126. 
Order  granting  Discharge  of  Insolvent  Debtor. 

(Code  Civ,  Pro.,  §  2178.) 

[At,  etc.,  as  in  form  No.  1115.] 
[Title  of  proceeding.] 

Upon  the  production  by  A.  B.,  of  the of , 


in  the  county  of ,  and  State  of  New  York,  in  the 

United  States,  the  petitioner,  for  a  discharge  from  his  debts 
in  the  above  entitled  proceeding,  x")ursuant  to  the  provisions 
of  article  first  of  title  first  of  chapter  seventeenth  of  the 
Code  of  Civil  Procedure,  of  a  certificate  of  M.  N.,  the  trus- 
tee appointed  by  an  order  of  this  court,  made  and  entered 

herein  on  the day  of ,  18 — ,  pursuant  to  the 

provisions  of  said  article,  dul}^  acknowledged  [or  proved], 
and  certified  in  like  manner  as  a  deed  to  be  recorded  in  the 

county  of ,  by  which  certifi.oise  it  appears  that 

the  said  A.  B.  has  executed  to  iiiL^  an  assignment,  dated 
,  18 — ,  for  the  benefit  of  :_i  his  creditors,  duly  ac- 
knowledged [or  proved],  and  certified  in  like  manner  as  a 

deed  to  be  recorded  in  the  county  of ,  of  all  his 

property,  at  law  or  in  equity,  in  possession,  reversion  or 
remainder,  excepting  only  so  much  thereof  as  is  exempt 
by  law  from  levy  and  sale,  by  virtue  of  an  execution,  and 
of  all  the  books,  vouchers  and  papers  relating  thereto,  and 
that  he  has  delivered  so  much  thereof  as  is  capable  of 
delivery ;  and  upon  the  production,  also,  by  said  A.  B.,  of 

the  certificate  of  J.  L.,  county  clerk  of county,  that 

the  said  assignment  has  been  duly  recorded  in  his  office 
on  the day  of ,  18 — : 

Now,  on  motion  of  G.  C,  attorney  for  said  A.  B.,  and  due 
notice  of  this  nution  having  been  given  to  [name  parties 
served],  and  after  hearing,  etc.  [or  no  one  appearing  to  op- 
pose] : 

It  is  hereby  ordered,  that  the  said  A.  B.  be  and  he  is 
hereby  [*]  granted  a  discharge  from  his  debts,  j)ursuant  to 
the  provisions  of  said  article  first  of  title  first  of  chapter 
seventeenth  of  the  Code  of  Civil  Procedure.* 


'  It  .soems  necessary  thut  an  order    court.     For  discbarge,  see  next  form 
should  1)6  entered  that  the  discharge    No.  1127. 
be  granted,  as  the  proceeding  is  in  tlic 


1008  Forms  Relating  to 

No.  1127. 
Biscliarge  of  Insolvent  Debtor. 

(Code  Civ.  Pro..  §2178.) 

[Title  of  proceeding.] 
To  all  to  whom  these  presents  shall  come  or  may  concern  : 

^Vhel■eas,  A.  B.,   an   insolvent   debtor,   residing   at   the 

of ,  in  the  county  of and  State  cf  New 

York,  did,  on  the day  of  ■ ,  18 — ,  present  a  peti- 
tion in  writing  and  duly  verified  to  the  county  court  of 
county  \or  to  the  supreme  courtj,^  praying  for  his  dis- 
charge from  his  debts,  pursuant  to  the  provisions  of  article 
first  of  title  first  of  chapter  seventeenth  of  the  Code  of  Civil 
Procedure,  upon  his  assigning  his  property  for  the  benefit 
of  all  his  creditors,  and  in  all  other  respects  complying  with 
the  provisions  of  said  article,  to  which  petition  was  annexed 
the  schedule  required  by  said  article,  duly  verified,  and, 
also,  written  instruments  executed  by  creditors  of  said  A. 
B.,  residing  in  the  United  States,  having  debts  owing  to 
them  in  good  faith,  then  due  or  thereafter  to  become  due, 
which  amounted  to  not  less  than  two-thirds  of  all  the  debts 
owing  by  said  A.  B.  to  creditors  residing  within  the  United 
States,  and  accompanied  by  the  affidavits  of  such  creditors 
[and  in  case  of  creditors  residing  without  the  State  by 
(sworn  copies  of)  the  original  accounts,  and  the  original 
specialties  and  other  written  securities  upon  which  these 
demands  arose  or  depended],'^  as  required  by  said  article, 
consenting  to  his  discharge  from  his  debts,  upon  his  com- 
plying with  the  provisions  of  said  article ;  whereupon  the 
said  court  made  an  order  requiring  all  the  creditors  of  the 
said  A.  B.  to  show  cause  before  it,  at  a  time  and  place 
therein  specified,  why  an  assignment  of  the  propertj^  of  the 
said  A.  B.  should  not  be  made  and  he  be  thereupon  dis- 
charged from  his  debts  as  prescribed  in  said  article,  and 
directing  the  publication  and  service  of  said  order  as  re- 
quired by  said  article,  which  said  order  was  duly  published 
and  served  as  thereby  required  ;  and. 

Whereas,  it  appeared,  upon  the  hearing  of  said  petition, 

'See  note  1,  p.  1001,  to  form  No.     amended  by  chapter  602  nf  Law3  of 
1118.  1389,  cited  in  note  3,  p.  995,  to  form 

'See  section  2161,  Code  Civ.  Pro.,  as     No.  1112. 


Insolvent  Debtors  and  Peisoners.  1009 

by  the  verdict  of  a  jury  [or  satisfactorily  to  the  court],  that 
the  said  A.  B.  was  ]ustly  and  truly  indebted  to  the  consent- 
ing creditors  in  sums  which  amounted  in  the  aggregate  to 
two-thirds  of  all  the  debts,  which  the  said  A.  B.  owed  at 
the  time  of  presenting  his  said  petition  to  creditors  residing 
within  the  United  States,  and  that  the  said  A.  B.  had  hon- 
estly and  fairly  given  a  true  account  of  his  property,  and 
had  in  all  things  conformed  to  the  matters  required  of  him 
by  said  article,  the  said  court,  by  its  order  duly  made  and 

entered,  on  the day  of ,  18 — ,  directed  an 

assignment  to  be  made  by  said  A.  B,,  for  the  benefit  of  all  his 
creditors,  of  all  his  property  at  law  or  in  equity,  in  posses- 
sion, reversion  and  remainder,  excepting  only  so  much 
thereof  as  was  exempt  by  law  from  levy  and  sale  by  virtue 
of  an  execution  to  M.  N.;  and 

Whereas,  [*]  upon  the  production,  by  said  A.  B.,  of  the 
certificate  of  said  M.  N.,  duly  acknowledged  [or  proved] 
and  certified  in  like  manner  as  a  deed  to  be  recorded  in  the 

countj"  of  to  the  effect  that  the  said  A.  B.  had 

assigned  to  him  on  the day  of ,  18—,  by 

an  instrument  in  writing  duly  acknowledged  [or  proved] 
and  certified  in  like  manner  as  a  deed  to  be  recorded  in  the 

county  of ,  all  his  property  so  directed  to  be  assigned, 

and  all  the  books,  vouchers  and  papers  relating  thereto,  and 
that  he  had  delivered  so  much  thereof  as  was  capable  of 
delivery  ;  and  also  of  a  certificate  of  the  county  clerk  of  the 

county  of ,  that  tiie  said  assignment  had  been  duly 

recorded  in  his  office  on  the day  of ,  18 — , 

[f]  the  said  court  made  an  order  on  the  day  of 

,  18 — ,  granting  to  the  said  A.  B.  a  discharge  from 


his  debts,  pursuant  to  the  provisions  of  said  article. 

Now,  therefore,  pursuant  to  said  last  mentioned  order, 
the  said  A.  B.  is  hereby  discharged  from  his  debts,  pursu- 
ant to  the  provisions  of  said  article.' 
Witness,  etc.  [teste]. 

[L.  s.]  J.  L.,  Cleric. 

F.  C,  Attorney  for  A.  B. 
[Office  address.'] 

'  See  note  1 1<»  last  loriii  No.  1120,  and    pers,  and  as  to  their  effect  as  evidence, 
astoreconliu/,^  discharge  and  (jtlicr  pa-     sec  Code  Civ.  Pro.  i:-  21H1;  as  to  ellecli 
127 


1010  FoKM3  Relating  to 

No.  1128. 
Affidavit  Upon  Refusal  of  Trustee  to  Give  Certificate,  etc. 

(Code  Civ.  Pro.,  §  2179.) 

[Title  of  proceeding.] 

County,  ss.: 

A.  B.,  of  ,  being  duly  sworn,  says,  that  on  the 

day  of ,  18 — ,  an  assignment  was  executed 


in  the  above  entitled  i:>roceeding,  pursuant  to  the  order  of 
this  court  herein,  for  the  benefit  of  all  his  creditors,  of  all 
the  property  directed  bj'  said  order  to  be  assigned  by  him, 
and  of  all  the  books,  jxipers  and  vouchers  relating  thereto, 
to  M.  N.,  the  trustee  appointed  by  said  order,  which  assign- 
ment was  duly  acknowledged  [or  proved],  and  certified  in 

like  manner  as  a  deed  to  be  recorded  in  the  county  of , 

and  that  he  has  delivered  to  said  M.  X.  so  much  of  said 
propetty  as  is  capable  of  delivery,  and  that  deponent  has 
paid  [or  tendered]  to  said  M.  N.  the  expense  of  making  [or 
of  acknowledging]  the  certificate  [or  of  recording  said  assign- 
ment in  the county  clerk's  office],  as  is  required  by 

secticm  2178  of  the  Code  of  Civil  Procedure  to  be  done  by 
•said  trustee,  in  order  to  entitle  deponent  to  his  discharge  in 
this  proceeding,  and  has  requested  the  said  trustee  to  exe- 
•cuie  [or  to  acknowledge]  said  certificate  [or  to  cause  said 
assignment  to  be  so  recorded],  but  that  said  M.  N.  has 
hitherto  refused  and  neglected  to  execute  [or  acknowledge] 
said  certificate  [or  to  cause  said  assignment  to  be  so  re- 
corded]. 

A.  B. 
[Jurat  as  in  form  No.  46.] 


No.  1129. 
Order  to  Show  Cause  upon  Affidavit  (No.  1128). 

(Code  Civ.  Pro.,  §  2179.) 

As  in  form  No.  325,  making  necessary  changes,  to  word 


of  discharge,  see  sections  2182,  2183,     ment  under  execution  or  order  of  arrest, 
2184  (id. >;  as  to  release  from  imprison-     see  section  2185  (id.). 

•^  See  note  2  to  form  No.  122. 


Insolvent  Debtors  and  Prisoners.  1011 

^ '  why, ' '  and  from  tlience  as  follows :  Why  the  said  petitioner 
should  not  be  discharged,  notwithstanding  the  neglect  [or 
refusal]  of  the  said  M.  N,  to  execute  the  certificate  [or 
specify  other  neglect  or  refusal]  as  mentioned  and  set  forth 
in  said  affidavit,  and  wh}'  the  appointment  of  said  M.  X., 
as  such  trustee,  should  not  be  revoked.' 

And  it  is  further  ordered,  that  cox)ies  of  this  order  and  of 
the  said  affidavit,  hereto  annexed,  be  served  upon  said  M.  N. 
personally  on  or  before  the day  of ,  18 — . 


No.  1130„ 
Order  upon  Return  of  Order  to  Show  Cause  (No.  1129). 

(Code  Civ.  Pro.,  §2180.) 

[At,  etc.,  as  in  form  No,  1115.] 
[Title  of  j)roceeding.] 

Upon  the  return  of  the  order  to  show  cause,  made  herein 
on  the day  of ,  18 — ,  with  proof  of  due  ser- 
vice thereof,  and  of  a  copy  of  the  affidavit  of  A.  B..  dated 
,  18 — ,  therein  referred  to  upon ,  and  it  ap- 
pearing by  the  said  affidavit  that  the  assignment  to  M.  N., 
as  trustee  herein,  required  to  be  executed  by  said  A.  B.,  has 
been  duly  executed,  and  that  the  said  A.  B.  has  duly  deliv- 
ered all  his  property  directed  to  be  assigned,  and  all  the 
books,  vouchers  and  papers  relating  thereto,  which  are  capa- 
ble of  delivery  ;  and  on  motion  of  E.  F.,  attorney  for  said 
A.  B.,  after  hearing,  etc.  [or  no  one  appearing  to  oj^pose] : 

It  is  hereby  ordered  [*],  that  a  discharge  be  and  hereby 
is  granted  to  said  A.  B.  from  his  debts,  pursuant  to  the 
provisions  of  article  first  of  title  first  of  chapter  seventeenth 
of  the  Code  of  Civil  Procedure. 

[Or  as  above  to  (*),  and  from  thence  as  follows  :  That  the 
appointment  of  said  M.  N.,  as  ti-ustee,  in  these  proceedings, 

by  the  order  of  this  court,  dated ,  18—,  be  and  the 

same  is  hereby  revoked,  and  that  upon  the  entry  of  this 
order  the  jjowers  of  said  M.  N.,  as  such  tiustee,  and  his 
interest  in  the  property  so  assigned  to  him,  shall  cease. 

'See  HH  to  order  to  ebow  cause  generally,  note  1  to  form  No.  162. 


1012  Forms  Relating  to 

(And  it  is  hereby  further  ordered,  that  F.  P.,  residing  at 
-,  in  this  State,  be  and  he  is  hereby  appointed  the 


trustee  in  tliese  proceedings  in  place  and  stead  of  said  M. 
N.,  such  apx)ointnient  is  to  have  the  same  effect  as  if  the 
said  M.  N.  was  named  as  trustee  in  the  said  original 
assignment.')] 


No.  1131. 

Attidavit  to  Move  for  Order  Directing  Judgment  to  be  Can- 
celled, etc. 

(Code  Civ.  Pro.,  §  2183.) 

[Title  of  cause.] 
County,  ss.  : 

A.  B.,  of ,  being  duly  sworn,  says,  that  hereto- 
fore, and  on  the day  of ,  18 — ,  an  applica- 
tion was  made  by  him  to  the  county  court  of  the  county  of 

[or  to  the  supreme  court]  ^  for  his  discharge  from 

his  debts,  pursuant  to  the  provisions  of  article  first  of  title 
first  of  chapter  seventeenth  of  the  Code  of  Civil  Pro- 
cedure, and  that  such  proceedings  were  had  upon  said 

application  that  on  the day  of ,  18 — ,  a 

discharge  was  granted  to  deponent  by  said  court  from  his 
debts,  pursuant  to  said  article,  of  which  discharge  a  copy 
is  hereto  annexed  marked  "A." 

And  deponent  further  says,  that  heretofore,  and  on  the 

day  of ,  18 — ,  a  judgment  was  rendered 

by  the court  in  favor  of  M.  Gr.,  and  against  this 

deponent,  for  the  sum  of dollars,  damages  and 

costs. 

That  the  judgment  roll  thereon  was  filed  in  the 

county  clerk's  office  on  the day  of ,  18 — , 

and  said  judgment  was  duly  docketed  in  said  countj^  clerk's 
office  on  that  day. 

And  deponent  further  says,  that  [here  show,  if  necessary, 
that  the  debt  comes  within  the  provisions  of  section  2182, 

*  This  clause  in  parenthesis  is  to  be         *  See  note  1,  p.  1001,  to  form  No. 
inserted  in  case   there   are   no   other     1118. 
trustees.     (Code  Civ.  Pro.,  §  2180.) 


Insolvent  Debtors  and  Pkisoners.  1013 

and  not  within  the  exceptions  in  sections  2183  and  2184  ;  or 
the  judgment  roll  may  be  annexed  to  show  these  facts]. 

And  deponent  further  says,  that  he  has  been  discharged 
from  the  payment  of  the  said  judgment  by  the  said  dis- 
charge.' 

A.  B. 

[Jurat  as  in  form  No.  46.] 


ISTo.  1132. 

Notice  of  Application  for  Cancellation  and  Discharge  of 

Judgment. 

(Code  Civ.  Pro.,  §  2182.) 

Substantially  as  in  form  No.  170  to  ["*],  and  from  thence 
as  follows:  For  an  order  discharging  the  said  judgment, 
mentioned  in  the  affidavit  of  A.  B.  herewith  served,  from 

record,  and  that  the  clerk  of  the  county  of cancel 

and  discharge  the  docket  thereof,  as  if  the  proper  satisfac- 
tion piece  of  the  said  judgment  was  filed  and  for  such  other, 
etc.,  substantially  as  in  form  No.  170  to  end  thereof. 

Dated ,  18—. 

[Signature,  etc.,  as  in  form  No.  170.] 
To  C.  D.,  etc' 

No.  1133. 
Order  for  Cancellation  and  Discharge  of  Judgment. 

(Code  Civ.  Pro.,  §  2182.) 

As  in  form  No.  174  to  [*],  and  from  thence  as  follows : 
It  is  hereby  ordered,  that  the  judgment  mentioned  in  said 

affidavit,  rendered  in  the Court  in  favor  of  C.  D. 

against  said  A.  B.,  on  the day  of  ,  18 — , 

for dollars,  the  judgment  roll  whereupon  was  filed 

and  said  judgment  docketed   in county  clerk's 

office  on  the  day  aforesaid,  be  cjincelled  and  dischaiged  of 
record,  and  that  the  clerk  of  said  county  of cancel 

'See  forms  Nos.  490,  491,  492,  for  also,  Wheeler  v.  Emraeleuth  (121  N.Y., 

procHe(linf,'nto  obtain  cancellation,  etc.,  241  ;  8.  C,  41  A.  L.  J.,  500),    Leo  v. 

of  judf^merit  after  diHcharj^e  in  bank-  JoHeph    (31    State    Rep.,    152),    Eber- 

niptcy,  and  Bee  noteH  to  thoHe  forms.  spacher  v.  Boehin  (33  id.,  792  ;  afT'd 

"  This  notice,  accompanied  with  cop-  without  op.,   12t)  N.  Y..  f)7H),  Thomat* 

ies  of  the  papers  upon  which  the  ap-  v.    .Snyd»M-    (77    Hun,    SBf)),    Stem   v. 

plication  is  made,  must  be  ^iven  to  the  Meyer  (9  Misc.,  102). 

judg-ment   creditor,    unless,   etc.     See  bee  note  1  to  form  No.  1131. 
section  2182,  Code  Civ.  Pro. ;  and  see. 


1014  FoiiMS  Kklating  to 

and  discliarge  the  docket  thereof,  as  if  the  proper  satisfac- 
tion piece  of  the  said  judgment  was  filed,  it  having  appeared 
thut  yaid  A.  B.  has  been  discharged  from  the  payment 
of  said  judgment,  pursuant  to  the  provisions  of  article  first 
of  title  first  of  chapter  seventeenth  of  the  Code  of  Civil 
Procedure.' 

Article  Second. 

forms  relating  to  exemption  from  arrest  or  discharge 
fro.ai  imprisonment  of  an  insolvent  debtor. 

(Code  Civ.  Pro.,  Ch.  17,  Tit.  1,  Art.  2.) 

No.   1134.  Petition  for  exemption  from  arrest  and  discbarge  from  imprison- 
ment of  insolvent  debtor. 

1135.  Affidavit  to  be  annexed  to  scbedule. 

1136.  Order  to  show  cause  iqion  petition,  No.  1134. 

1137.  Order  directing  assignment  by  debtor. 

1138.  Assignment  by  debtor  pursuant  to  order. 

1139.  Order  for  discharge  of  debtor. 

1140.  Exemption  and  discharge  of  debtor. 


No.  1134. 

Petition  for  Exemption  from  Arrest  and  Discharge  from 
Imprisonment  of  Insolvent  Debtor. 

(Code  Civ.  Pro..  §  2189.) 

To  the  County  Court  of  the  county  of \or  to  the  Supreme 

Court] :  - 

The  petition  of  A.  B.  respectfully  shows,  that  he  resides 

in  the of ,  in  the  county  of ,  and 

State  of  New  York. 

[That  he  is  imprisoned  in  the ,  at  ,  in 

the  county  of .] 

That  the  cause  of  his  imprisonment  is  as  follows,  to  wit 
[state  same]. 

That  he  is  unable  to  pay  his  debts  in  full. 

Tliat  he  is  willing  to  assign  his  property  for  the  benefit  of 
all  his  creditors,  and,  in  all  other  respects,  to  comply  with 
the  provisions  of  article  second  of  title  first  of  chapter  sev- 

'  See  note  1  to  form  No.  1131,  p.  1013.     1895,  taking  effect  Jan.  1,  1896,  as  to 
'  See  section  2188  of  Code  Civ.  Pro.,     courts   to   which  application  is  to  be 
as  amended   by   ch.  946   of  Laws  of    made. 


Insolvent  Debtors  and  Prisoners.  1015 

enteenth  of  the  Code  of  Civil  Procedure,  for  the  purpose  of 
being  exempted  from  arrest  and  imprisonment,  as  prescribed 
therein. 

Wherefore  your  petitioner  prays  that,  upon  his  so  doing, 
he  may  thereafter  be  exempted  from  arrest  by  reason  of  a 
debt  arising  upon  a  contract  made  previously  hereto  [and 
that  he  may  be  discharged  from  his  said  imprisonment]. 

Dated ,  18—. 

A.  B. 

County,  ss.  : 

A.  B.,  of ,  being  duly  sworn,  says,  that  he  is  the 

petitioner  named  in  and  who  subscribed  the  foregoing  peti- 
tion ;  that  the  said  petition  is,  in  all  respects,  true  in  matter 

of  fact. 

A.  B. 

[Jurat  as  in  form  No.  46.'] 

[Annex  schedule  as  in  form  No.  1113 ;  see  section  2190, 
Code  Civil  Procedure  ;  for  affidavit  to  schedule,  see  section 
2191,  id.,  and  next  form  No.  1135.] 


No.  1135. 
Affidavit  to  be  Annexed  to  Schedule. 

(Code  Civ.  Pro.,  §  2191.) 

I,  A.  B.,  do  swear  [or  affirm],  that  the  matters  of  fact, 
stated  in  the  schedule  hereto  annexed,  are,  in  all  respects, 
just  and  true. 

That  I  have  not,  at  any  time,  or  in  any  manner  whatso- 
ever, disposed  of  or  made  over  any  part  of  my  property,  not 
exempt  by  express  provision  of  law  from  levy  and  sale  by 
virtue  of  an  execution,  for  the  future  benefit  of  myself  or 
my  familj ,  or  disposed  of  or  made  over  any  part  of  my  prop- 
erty, in  order  to  defraud  any  of  my  creditors  ;  and  that  I 
have  not  paid,  secured  to  be  paid,  or  in  any  way  com- 
pounded with,  any  of  my  creditors,  with  a  view  that  they, 

'  The  affidavit  must  be  taken  on  the  N.  Y.,  5),  but  not  on  point  discusfled 

day  of  the  presentation  of  the  petition,  below.     Goodwin  v.  Griffis  (88  N.  Y., 

(Code  Civ.  Pro.,  ^  2189.)  GJ9),  SchufTer  v.  Riaeley  (114  N.  Y., 

See   Develin  v.  Cooper  (84   N.  Y.,  23,  lev't' S.  C,  44  Ilun  G).   People  ex 

411  ;  aff'g  S.  C,  20  Hun,  188),  In  mj  rel.  Eldnd{,'e  v.  Fancher  (1  Hun,  27), 

Smal    (:>.\  How.   Pr.,    4:{2),    Matter  of  Dieckerboff  v.  Ahlborn  (2  Ahl).  N.  C, 

RobertH  (10  Hun,  253  ;  rev'd  8.  C,  70  372),  Mills  v.  Hildreth  (.')  Hun,  364). 


1016  Forms  Relating  to 

or  any  of  them,  should  abstain  from  opposing  my  dis- 
charge." 

A.  B. 
[Jurat  as  in  form  No.  46,  or  form  No.  151.] 


No.  1136. 
Order  to  Show  Cause  upon  Petition  (No.  1134). 

(Code  Civ.  Pro.,  §2192.) 

[At,  etc.,  as  in  form  No.  1115.] 
[Title  of  proceeding.] 
The  petition  of  A.  B.,  of ,  dated  on  the 


day  of ,  18 — ,  and  the  papers  annexed  thereto  hav- 
ing been  presented  to  this  court  and  filed  with  the  clerk, 
praying  that  upon  his  assigning  his  property  for  the  benefit 
of  all  his  creditors,  and  in  all  other  respects  complying  with 
the  provisions  of  article  second  of  title  first  of  chapter  sev- 
enteenth of  the  Code  of  Civil  Procedure,  he  may  thereafter 
be  exempted  from  arrest  by  reason  of  a  debt  arising  upon  a 
contract  previously  made  [and  that  he  may  be  discharged 
from  his  imprisonment] : 

It  is  liereb}^  ordered,  on  motion  of  C.  F.,  counsel  for  the 
said  petitioner,  that  all  the  creditors  of  said  A.  B.  show 
cause  at,  etc.,  on,  etc.,  why  the  prayer  of  the  petitioner 
should  not  be  granted. 

[Add  directions  for  publication  and  service  of  the  order 
same  as  in  form  No.  1115.'] 


No.  1137. 
Order  Directing  Assignment  by  Debtor, 

(Code  Civ  Pro.,  §2194.) 

[At,  etc.,  as  in  form  No.  1115.] 
[Title  of  proceeding.] 
A.  B.,  the  petitioner  herein,  having,  upon  the  return  of 

'  As  to  the  officer  before  whom  this        *  For  proof  of  service  and  publica- 
jifiidavit  is  to  be  made,  see  Code  Civ.     tion  of  the  order,  see  forms  Nos.  1116, 
Pro.,  §2191,  as  amended  by  chapter     1117;  for  specification  of  objections  by 
946  of  Laws  of  1895,  taking  effect  Jan. 
1,  1896. 


Insolvent  Debtors  and  Prisoners.  1017 

the  order  to  show  cause  heretofore  granted,  presented  to 
this  court,  and  filed  with  the  clerk,  proof  to  the  satisfaction 
of  the  court  that  the  said  order  has  been  duly  published 
and  served  as  thereby  required,  and  the  court  having  there- 
upon, on  that  day  [or  on  the day  of ,  18 — , 

to  which  the  said  proceeding  was  adjourned],  heard  the 
allegations  and  proofs  of  the  parties  appearing,  and  it  hav- 
ing appeared  satisfactorily  to  the  court  by  said  proof  [or 
by  the  verdict  of  the  jury  rendered  herein],  that  the  said 
petitioner  is  unable  to  pay  his  debts ;  that  the  schedule 
annexed  to  his  petition  is  true  ;  that  he  has  not  been  guilty 
of  any  fraud  or  concealment  in  violation  of  the  provisions 
of  article  second  of  title  first  of  chai)ter  seventeenth  of  the 
Code  of  Civil  Procedure,  and  that  he  has  conformed  in  all 
things  to  the  matters  required  of  him  by  said  article : 

It  is  hereby  ordered,  on  motion  of  C.  F.,  counsel  for  the 
said  petitioner,  after  hearing,  etc.  [or  no  one  appearing  to 
oppose],  that  [insert  same  directions  for  execution  of  assign- 
ment as  in  form  No.  1122]. ' 


No.  113S. 
Assignment  by  Debtor  Pursuant  to  Order. 

(Code  Civ.  Pro.,  §2194.) 

Know  all  men  bf/  these  presents :  That,  etc.  [proceed  as 
in  form  No.  1123,  making  the  necessary  changes  in  the 
recitals]. 

No.  1139. 
Order  for  Discliarge  of  Debtor. 

(Code  Civ  Pro.,  §  2195.) 

Proceed  as  in  form  No.  1126  to  [*],  making  necessary 
changes  in  the  recitals,  and  from  thence  continue  as  fol- 
lows:  [f]  Forever  hereafter  exempted  from  arrest  or  im- 

opposing  creditor  and  demand  of  juiy    tions  2171,  2172,  see  forms  Nos.  1120, 
trial,   see   form   No.    1118;    proof  by    1121. 

creditor  under  section  2109,  sec  form        '  For  certificate  of  trustee!  and  of 
No.  1112;  for  proceediuga  under  sec-    county  clerk,   see  forms  Nos.    112}, 

1125. 
128 


lOlS  FoKMs  Relating  to 

prisonment  by  reason  of  any  debt  due  at  the  time  of  the 
making  the  said  assignment,  or  contracted  before  that  time 
though  payable  afterwards  ;  or  by  reason  of  any  liability 
incurred  by  liini  by  making  or  indorsing  a  promissory  note, 
or  by  accepting,  drawing  or  indorsing  a  bill  of  exchange 
before  the  execution  of  the  said  assignment ;  or  in  conse- 
quence of  the  payment,  by  any  party  to  such  a  note  or 
bill,  of  the  whole  or  any  part  of  the  money  secured  thereby, 
whether  the  payment  is  made  before  or  after  the  execution 
of  the  assignment  with  the  exceptions  specified  in  section 
2218  of  the  Code  of  Civil  Procedure.' 


No.  1140. 
Exemption  and  Discharge  of  Debtor, 

(Code  Civ.  Pro.,  §2195.) 

[Title  of  proceeding.] 

To  all  to  whom  these  'presents  shall  come  or  may  concern^ 
greeting : 

Whereas,  A.  B.,  of ,  in  the  county  of ,  hereto- 
fore, and  on  the day  of ,  18 — ,  presented  to  the 

county  court  of county  [or  to  the  supreme  court,]' 

and  filed  with  the  clerk  of  said  court  his  petition,, 
in  writing,  in  due  form,  and  duly  verified  on  that  daj^,  pray- 
ing that  upon  his  assigning  his  property  for  the  benefit  of 
all  his  creditors,  and  in  all  other  respects  complying  with 
the  provisions  of  article  second  of  title  first  of  chapter  sev- 
enteenth of  the  Code  of  Civil  Procedure,  he  might  there- 
after be  exempted  from  arrest  by  reason  of  a  debt  arising 
upon  a  contract  previously  made  [and  discharged  from  his- 
imprisonment],  as  prescribed  in  said  article,  to  which  peti- 
tion was  annexed  the  schedule  required  by  law,  duly  veri- 
fied on  that  day  ;  and, 

Whereas,  the  said  court  thereupon  made  an  order,  requir- 
ing all  the  creditors  of  said  petitioner  to  show  cause  before 
it,  at  a  time  and  place  therein  specified,  why  the  prayer  of 

'See  note  1  to  form  No.  1126.  'See  note  2  to  form  No.  1134. 


Insolvent  Debtors  and  Prisoners.  1019 

tlie  said  petitioner  should  not  be  granted,  and  directing  that 
the  said  order  be  published  and  served  in  the  manner  pre- 
scribed in  section  2165  of  the  Code  of  Civil  Procedure,  for 
the  publication  and  service  of  an  order  made  as  therein  pre- 
scribed ;  and, 

Whereas,  on  the  day  specified  in  said  order,  and  before 
any  other  proceedings  were  taken  in  said  matter,  the  said 
petitioner  presented  to  said  court,  and  tiled  with  the  clerk, 
proof  to  the  satisfaction  of  the  court  that  the  said  order 
had  been  duly  published  and  served  as  required  thereby, 
and  the  court  having  thereupon  heard  the  allegations  and 
proofs  of  the  parties  appearing  ;  and  it  having  appeared  by 
the  verdict  of  the  jury  rendered  therein  [or  it  having  ap- 
peared satisfactorily  to  the  court],  that  the  said  petitioner 
was  unable  to  pay  his  debts,  that  the  schedule  annexed  to 
his  said  petition  was  true,  that  lie  had  not  been  guilty  of 
any  fraud  or  concealment  in  violation  of  the  provisions 
of  said  article,  and  that  he  had,  in  all  things,  conformed  to 
the  matters  required  of  him  by  said  article  ;  an  order  was 
made  by  said  court  directing  the  execution  of  an  assign- 
ment of  all  his  property,  at  law  or  in  equity,  in  possession, 
reversion  or  remainder,  excepting  only  so  much  thereof  as 
w^as  exempt  by  law  from  levy  and  sale  b}'  virtue  of  an  exe- 
cution to  M.  N.,  the  trustee  therein  designated  ;  and. 

Whereas  [insert  as  in  form  No.  1127  from  (*)  to  (f),  and 
continue  as  follows],  the  said  court,  made  an  order  on  the 

day  of ,  18 — ,  granting  to  the  petitioner  a 

discharge,  as  is  hereinafter  provided  : 

Now,  therefore,  in  pursuance  of  the  said  last  mentioned 
order,  the  said  A.  B.  is  [conclude  as  in  form  No.  1139  from 
(t)  to  end  thereof]. 

Witness,  etc.  [teste  as  in  form  No.  242]. 

[L.  s.]  J.  L.,  Clerk. 

E.  F.,  Attorney  for  A.  B. 
[Office  address.'] 

>  See  note  2  to  form  No.  122. 


1020  Forms  Relating  to 


Article  Third. 

FORMS  RELATING  TO   DISCHARGE  OF  AN  IMPRISONED  JUDG- 
MENT DEBTOR  FROM  IMPRlbONMENT. 

(Code  Civ.  Pro.,  Cli.  17,  Tit.  1,  Art.  1) 

No.  1141.  Petition  for  discharge  of  person  imprisoned  by  virtue  of  au  exe- 
cution. 

1142.  Notice  to  creditors  of  presentation  of  petition,  etc. 

1143.  Order  upon  presentation  of  petition. 

1144.  Order  directing  assignment  by  debtor  imprisoned  under  execution. 

1145.  Assignment  by  debtor  imprisoned  imder  execution. 

1146.  Order  discliarging  debtor  imprisoned  under  execution. 

1147.  Notice  by  creditor  to  debtor  to  apply  for  discharge. 


No.  1141. 

Petition  for  Discharge  of  Person  Imprisoned  by  Yirtue  of 

an  Execution. 

(Code  Civ.  Pro..  §2203.) 

To  the  [name  of  courf]  ;i 

The  petition  of  A.  B.  respectfully  shows,  that  he  is  im- 
prisoned i:i  the  [name  place  of  confinement]  at ,  in 

the  county  of . 

That  he  is  imprisoned  by  virtue  of  an  execution  [or  of 
executions],  of  which  a  copy  is  [or  copies  are]  hereto  an- 
nexed marked  A,  etc.  [or  state  the  substance  of  the  execu- 
tion or  executions]  [and  that  your  petitioner  has  been 
imprisoned  by  virtue  of  said  execution  (or  executions)  for 
more  than  three  months]. 2 

That  the  sum  of dollars  is  now  due  and  unpaid 

upon  said  execution  [or  executions]. 

Your  petitioner  further  shows,  that  he  has  annexed  hereto, 
and  presents  herewith,  a  schedule  marked  B,  containing  a 
just  and  true  account  of  all  his  property,  and  of  all  charges 
affecting  the  same,  as  the  said  property  and  charges  existed 
at  the  time  when  he  was  first  imprisoned  and  at  the  time 
when  this  petition  is  prepared,  together  with  a  just  and  true 
account  of  all  deeds,  securities,  books,  vouchers  and  papers, 
relating  to  the  said  property  and  to  the  charges  thereupon. 

'See  eection  2201,  Code  Civ.   Pro.,     courts  to  which  application  should  bo 
ns  amended   by   eh.  946   of  Laws   of    made. 
1895,  taking   effect   Jan.  1,  1896,  as  to        'See  Code  Civ.  Pro.,  §  2202, 


Insolvent  Debtors  and  Prisoners.  1021 

And  your  petitioner  j)rays  that  an  order  may  be  made  hy 
this  court,  directing  your  petitioner  to  be  brought  before  it 
on  a  day  designated  therein,  and  that  your  petitioner  may 
be  discharged  from  his  said  imprisonment  upon  his  com- 
plying with  the  provisions  of  article  third  of  title  first  of 
chapter  seventeenth  of  the  Code  of  Civil  Procedure,  and 
may  have  such  other  and  further  relief  as  he  may  be  enti- 
tled to  under  the  provisions  of  said  article. 

A.  B. 

Dated ,  18—. 

I,  A.  B.,  do  swear  [or  affirm],  that  the  matters  of  fact 
stated  in  the  petition  and  schedule  hereto  annexed,  are,  la 
all  resi)ects,  just  and  true  ;  and  that  I  have  not,  at  any  time, 
or  in  any  manner  whatsoever,  disposed  of  or  made  over  any 
part  of  my  property,  not  exempt  by  express  provision  of 
law  from  levy  and  sale  by  virtue  of  an  execution,  for  the 
future  benefit  of  myself  or  my  family,  or  disi)osed  of  or 
made  over  any  part  of  my  jDroperty  with  intent  to  injure  or 
defraud  any  of  mj^  creditors.' 

A.  B. 

[Jurat  as  in  forms  ISTos.  46  or  151.] 

[Schedule  A,  referred  to  in  the  foregoing  petition.] 

[Schedule  B,  referred  to  in  the  foregoing  petition.] 


No.  1142. 
Notice  to  Creditors  of  Presentation  of  Petition,  etc. 

(Code  Civ.  Pro..  §  2205.) 

[Title  of  proceeding.] 

Sir — Take  notice,  that  the  petition  and  schedules,  copies 
of  wliich  are  herewith  served  upon  you,  will  be  presented 

to  the Court,  at  a  [Special]  Term  thereof,  to  be 

held  at  the ,  in  the of ,  on  the 

day  of ,  18 — ,  at  the  opening  of  the  court 

[or  at o'clock  in  the noon],  or  as  soon 


'This  oath  must  be  subscribed  and  erts  (10  Hun,  253;  8.  C,  70  N.  Y.,  5), 

taken  on  the  day  of  the  presentation  Borthwick   v.    Howe   (27    Hun,   505), 

of  the  petition.     (Code  of  Civ.  Pro.,  Shaffer  v.  Riseley   (114  N.  Y.,  23,  re- 

Ji  2204.)  verBing  same  case,  44   Hun,  (>),  In  re 

S^e    Goodwin    v.  Griffia  (88   N    Y.,  Boyce  (19  Civ.  Pro.  R.,  23),  Matter  of 

629),  III  re  Chappell  (23  Hun,  179).  In  Paton  (7  Misc.,  467). 
re  Smal  (53  How.  Pr.,  432),  In  re  Rob- 


1022  Forms  Relating  to 

thereafter  as  counsel  can  be  heard,  and  that  application  will 

be  then  and  there  made  to  said  court  that  the  prayer  of  said 

l^etition  be  granted. 

Dated ,  18—. 

F.  C.  {^Attorney  for\  Petitioner. 

[Office  address.'] 

To  W.  G.' 


No.  1143. 
Order  upon  Presentation  of  Petition, 

(Code  Civ.  Pro.,  §  2208.) 

[At,  etc.,  as  in  form  No.  80. J 
[Title  of  proceeding.] 

A.  B.  having  presented  his  petition  to  this  court,  dated 

,  18 — ,  with  the  schedule  and  affidavit,  as  required 

by  law,  praying  for  an  order  directing  the  said  A.  B.  to  be 
brought  before  this  court  on  a  day  designated  therein,  and 
that  the  said  A.  B.  be  discharged  from  his  imprisonment  by 

virtue  of  an  execution  issued  out  of  the  • Court  in 

an  action  wherein  C.  F.  is  plaintiff  and  the  said  A.  B.  is  de- 
fendant, I^^J  and  due  proof  having  been  made  to  the  court 
of  the  service  upon  the  said  C.  F.  of  a  copy  of  said  petition 
and  of  said  schedule  and  affidavit,  together  with  a  written 
notice  of  the  time  when,  and  place  where,  they  would  be 
presented. 

Now,  on  motion  of  M.  J.,  counsel  for  the  said  petitioner, 
after  hearing,  etc.,  and  on  reading  [name  opposing  papers  {or 
no  one  appearing  to  oppose)] : 

It  is  hereby  ordered,   that  the  sheriff  of  the  county  of 

bring  the  said  A.  B.  before  this  court  at,  etc., 

on,  etc. 


No.  1144. 

Order  Directing  Assignment  by  Debtor  Inprisoned  under 

Execution. 

(Code  Civ.  Pro.,  §  2208.) 

As  in  form  No.  1143  to  [*],  and  from  thence  as  follows : 

'  See  note  2  to  form  No.  122.  service,  see  sections  2205,  2206,  2207, 

'  As  to  the  persons  upon  whom  the     Code  Civ.  Pro. 
notice  is  to  be  served,  aud  manner  of 


Insolvent  Debtors  and  Prisoners.           1023 
And  an  order  directing  the  sheriff  of  the  county  of 


to  bring  said  A.  B.  before  this  court  on  a  day  designated 
therein  having  been  dul}^  made,  and  the  said  A.  B.  brought 
before  the  court  in  pursuance  thereof  ;  and  the  court  having 
heard  and  determined  the  allegations  and  proofs  of  the  par- 
ties, and  being  satisfied  that  the  said  petition  and  schedule 
are  correct,  and  that  the  petitioner's  proceedings  are  just 
and  fair,   [f] 

Now,  on  motion  of  M.  J,,  of  counsel  for  the  said  petitioner, 
after  hearing,  etc.,  and  on  reading  [name  opposing  papers  {or 
no  one  appearing  to  oj^pose)] : 

It  is  hereby  ordered  and  directed,  that  the  said  A.  B.  exe- 
cute to  I.  K.,  of [and  K.  L.,  of ],  who  is 

\or  are]  hereby  appointed  trustee  [or  trustees]  to  receive  the 
same,  an  assignment  of  all  his  property,  not  expressly 
exempt  by  law  from  levy  and  sale  by  virtue  of  an  execu- 
tion ;  or  of  so  much  thereof  as  is  sufficient  to  satisfy  the  exe- 
cution [or  executions]  by  virtue  of  which  he  is  imprisoned.' 


No.  1145. 
Assignment  by  Debtor  Imprisoned  under  Execution. 

(Code  Civ.  Pro.,  §§  2208,  2211.) 

Whereas,  I,  A.  B.,  did  present  to  the Court  a  peti- 
tion, duly  verified  on  the day  of ,  18 — ,  with 

the  schedule  and  affidavit  required  by  law,  and  praying  for 
an  order  directing  me  to  be  brought  before  the  said  court  on  a 
day  designated  therein,  and  that  I,  said  A.  B.,  be  discharged 
from  imprisonment  by  virtue  of  an  execution  issued  out  of 

>  See  Borthwick  v.  Howe  (27  Hun,  1883),  Matter  of  Benson  (10  Daly,  166), 

SOI),  In  re  Fowler  (8  Daly,  548),  Mat-  Price  v.  Orcutt  (N.  Y.  Daily  Reg.,  May 

ter  of  Fitzgerald  (5  Abb.  N.  C. ,  357),  In  26,  1884),  Zung  v.  Van  Minden  (N.  Y. 

re  Benson  (GO  How.  Pr.,  314),  Sparks  Daily  Reg.,  Dec.  6,  1883),  Coffin  v. 

V.  Andrews  (1  City  Ct.,  76),  Matter  of  Gourlay  (20  Hun.  308).  Suydam  v.  Bel 

Pearce  (29  Hun,  270),  Barck  v.  Scun  knap  (20  Hun,  87),  Develiu  v.  Cooper 

(N.  Y.  Daily  Reg.,  May  31, 1883),  Ha vi-  (-,'0  Hun.  188;  alfd,  84  N.  Y.,  410), 

land  V.  Kane  (1  Abb.   [N.  S.],  409),  Moore  v.  Mc.Malion  (20  Hun,  44),  la 

Moran  v.  Seccird  ([U.  S.  Circt.  Ct.,  S.  re  Fitzgerald  (S  Daly.  188),  and  ca-ses 

D.]  15  Heix)rter,  355),  Matter  of  Ron-  cited  in  note  1,  page  1021,  to  form  No. 

enbergaO  Abb.  [N.  S.].  450),  Kappel  H^L   among  other  caHes  aH  to  tl.eB« 

V.  Y<.tz  (N.  Y.  Daily   Reg..  Dec.  26,  P>-"ceedmg8. 


1024  Forms  Relating  to 

tlie Court,  in  an  action  wherein  C.  F.  is  plaintiff 

and  I,  the  said  A.  B.,  am  defendant,  and  an  order  so  direct- 
ing me  to  be  ])rouglit  before  the  said  court  having  been  duly 
made,  and  I  having  been  brought  before  the  said  court  in 
pursuance  thereof,  and  the  court  having  heard  the  allega- 
tions and  proofs  of  the  parties  and  being  satisfied  that  the 
said  petition  and  schedule  was  correct,  and  that  my  joro- 
ceedings,  as  said  petitioner,  were  just  and  fair,  and  having 

ordered  me  to  execute  to  J.  K.,  of [and  K.  L.,  of 

],  thereby  ai^pointed  trustee  [or  trustees],  an  assign- 
ment of  all  my  property  not  expressly  exempt  by  law  from 
levy  and  sale  by  virtue  of  an  execution  ;  or  of  so  much 
thereof  as  is  sufficient  to  satisfy  the  said  execution  [or  exe- 
cutions], by  virtue  of  which  I  am  imprisoned. 

Now,  therefore,  in  consideration  thereof,  and  in  conform- 
ity to  the  order  of  said  court,  I  have  assigned  and  trans- 
ferred, and  hereby  do  assign  and  transfer,  unto  the  said 
J.  K.  [and  K.  L.],  as  such  trustee  [or  trustees],  all  my  prop- 
erty, not  exj^ressly  exempt  by  law  from  levy  and  sale  by 
virtue  of  an  execution  [or  describe  x)articular  property 
assigned]. 

In  witness  whereof,  T  have  hereunto  set  my  hand  and 

seal  this day  of ,  18—.* 

A.  B.     [L.  s.] 

Sealed  and  delivered  in  presence  of . 

[Acknowledgment  as  in  form  No.  340,  or  proof  as  in  form 
No.  538.] 


No.  1146. 
Order  Discharging  Debtor  Imprisoned  under  Execution. 

(Code  Civ.  Pro.,  §2212.) 

As  in  form  No.  1144  to  [f],  and  from  thence  as  follows : 
And  an  order  having  been  thereupon  made  by  said  court, 

directing  the  said  A.  B.  to  execute  to  J.  K.,  of 

[and  K.  L.,  of ],  thereby  appointed  trustee  [or  trus- 
tees], an  assignment  of  all  his  property  not  expressly  ex- 
empt by  law  from  levy  and  sale  by  virtue  of  an  execution, 

'  As  to  powers  iind   dulies  of  the    as  to  eflfect  of  assignment,  see  section 
trustees,  see  Code  Civ.  Pro.,  g  2215;    2211  (id,). 


Insolvent  Debtors  astd  Prisoners,  1025 

or  of  so  much  thereof  as  was  suflicient  to  satisfy  the  execu- 
tion [or  executions]  by  virtue  of  which  he  was  imprisoned, 
and  said  assignment  having  been  duly  executed,  and  ac- 
knowledged [o7'  proved]  and  certified  in  like  manner  as  a 

deed  to  be  recorded  in  the  county  of ,  and  having 

been  recorded  in  the  clerk' s  office  of  said  county  [and  also 

in  the  clerk's  office  of  the  county  of ],  and  the  said 

petitioner  having  produced  to  the  court  satisfactory  evi- 
dence that  the  petitioner  has  actually  delivered  to  the  said 
trustee  [or  trustees]  all  the  property  so  directed  to  be 
assigned  which  was  capable  of  delivery  [or  the  said  x>eti- 
tioner  having  given  security,  approved  by  the  court,  for  the 
future  delivery  of  the  property  so  directed,  etc.  (as  above)] : 

Now,  therefore,  on  motion  of  C.  F.,  of  counsel  for  said 
petitioner : 

It  is  hereby  ordered,  that  the  said  A.  B.  be  and  he  hereby 
is  discharged  from  imprisonment  by  virtue  of  the  said  exe- 
cutions.^ 


No.  1147. 
Notice  by  Creditor  to  Debtor  to  Apply  for  Discharge. 

(Code  Civ   Pro.,  g  2216.) 

Sir — You  are  hereby  notified,  pursuant  to  the  provisions 
of  section  2216  of  the  Code  of  Civil  Procedure,  that  you  are 
required  to  apply  for  your  discharge,  according  to  the  pro- 
visions of  article  third  of  title  first  of  chapter  seventeenth 
of  said  Code.' 

Dated ,  18—. 

Yours,  etc., 

M.  N. 

[Office  address  or  place  of  business.*] 
To  A.  B. 

'  As  to  effect  of  discharge,  see  sec-        *  See  section  2217,  Code  Civ  Pro,, 
tions  3213.  2214,  2218,  Code  Civ  Pro.     as  to  effect  of  this  notice. 

3  See  note  2  to  form  No.  123. 

129 


1026  Forms  Kelating  to 


Article  Fourth. 

forms  relating  to  care  of  the  property  of  a  person 
confined  for  crime 

(Code  Civ.  Pro  ,  Cb   17,  Tit.  1,  Art.  4.) 

No.  1148.     Petition  for  appointment  of  trustees  to  take  charge  of  property  of 
person  inijirisoncd  for  crime. 

1149.  Order  upon  proscntution  of  petition. 

1150.  Order  upon  the  return  of  order  to  show  causey,  No.  1149. 


No.  1148. 

Petition  for  Appoiiitineiit  of  Trustee  to  take  Charge  of 
Property  of  Person  Imprisoned  for  Crime. 

(Code  Civ   Pro.,  §2222.) 

To  the  County  Court  of  the  county  of ,  [or  the  Supreme 

Court  in  the judicial  district^ '} 

The  petition  of  J.  K.  respectfully  shows,  that  A.  B.  is 

imprisoned  in  the  State  prison  at ,  for  a  term  less 

than  life,  to  wit :  for years  from  the day 

of ,  18 —  [or  in  the  penitentiary  {or  county  jail)  of 

the  county  of ,  at for  a  longer  term  than 

one  year,  to  wit :  for  the  term  of ,  from,  etc.  J,  under 

clie  sentence  of  the Court,  for  the  offense  of , 

as  will  more  fully  appear  from  the  copy  of  the  sentence  of 
conviction  of  said  A.  B.,  annexed  to  and  accompanying  this 

petition,  duly  certified  by  the  clerk  of county  [or 

name  other  clerk  of  the  court],  under  the  seal  of  said 
court."^ 

That  said  A.  B.  resided  at ,  in  the  county  of 

-,  in  the  State  of  [New  York],  at  the  time  of  his 


said  imprisonment. 

That  your  petitioner  resides  at ,  in  the  State  of 

[New  York],  and  is  a  creditor  of  said  A.  B.  to  the  amount 

of dollars  [or  is  the  husband,  or  wife,  or  child  of 

said  A.  B.,  or  is  one  of  the  next  of  kin  {or  one  of  the  heirs 
presumptive)  of  said  A.  B.  (showing  in  what  way),  or  a 

•  As  to  cou  rts  to  which  such  applica-  '  An  affidavit  of  the  appUcant  is  to  be 

lion  must  he  made,  see  section  2219  of  annexed  to  this  copy  of  the  sentence, 

Code  Civ.  Pro.,  as  amended  by  chap-  stating'  that  the  person  so  convicted  is 

ter  946  of  Laws  of  1895,  taking  efiect  actually  impi-isoned  thereunder.  (Code 

January  1,  1896.  Civ.  Pro.,  §  2224.) 


Insolvent  Debtors  and  Prisoners.  1027 

relative  of  said  A.  B.  whom  lie  is  bound  to  support,  to  wit, 
a ]. 

Tliat  the  name  and  residence  of  each  person  who  is  enti- 
tled to  make  this  application,  as  prescribed  in  section  2220 
of  the  Code  of  Civil  Procedure,  is  as  follows,  to  wit  [state 
samej. 

That  the  following  is  a  brief  description  of  the  property, 
real  and  personal,  of  the  said  prisoner,  and  of  the  value 
thereof,  to  wit  [describe  same]. 

[That  annexed  hereto  is  {or  are)  (sworn  coj)ies  of)  the 
original  account  {or  accounts),  and  the  original  (name  writ- 
ten specialties  or  securities,  if  any),  upon  which  the  demand 
of  your  petitioner  arose  {or  depends).'] 

[That  a  certain  mortgage  {or  judgment,  or  other  security) 

for  the  payment  of  a  certain  sum  of  money,  to  wit, 

dollars  (describing  it),  which  affects  {or  is  a  lien  upon)  cer- 
tain real  {or  personal)  property  belonging  to  said  A.  B.  {or 
transferred  by  said  A.  B.  since  said  lien  was  created),  is 
owned  by  {or  held  in  trust  for)  your  petitioner,  which  said 
mortgage  (etc.)  your  petitioner  hereby  relinquishes,  so  far 
as  it  affects  said  property,  to  the  trustee  to  be  appointed 
pursuant  to  this  petition,  for  the  benefit  of  all  the  creditors 
of  said  A.  B.,  pursuant  to  section  2221  of  the  Code  of  Civil 
Procedure."] 

And  your  petitioner  prays  that  this  court  will  appoint 
one  or  more  trustees  to  take  charge  of  the  property  of  said 
A.  B.,  as  prescribed  in  article  fourth  of  title  first  of  cliapter 
seventeenth  of  the  Code  of  Civil  Procedure.' 

J.  K. 

Dated ,  18—. 

County,  ss.  : 


J.  K.,  being  duly  sworn,  says,  that  he  is  the  petitioner 
named  in  the  foregoing  petition  by  him  subscribed,  and 

'  This  clause  in  brackets  is  to  be  in-  '  See  section  12221,  Code  Civ.  Pro., 

serted  and  the  papers  annexed  if  the  as  to  this  reliii(|iiisiiinent. 

applicant  is  a  creditor  residing  within-  ^  If  any  of  the  facts  required  to  be 

the  United  States,  and  not  a  resident  of  set  forth  in  the  petition  cannot  beascer- 

the  State.     (Code  Civ.   Pro.,  ^g  2161,  tained  by  the  petitioner,  after  the  e.xer- 

2222.)     And  see  note   8  to  form  No.  else  of  due  diliirence,  that  fact  must  be 

1112.  .stated.     (Code  Civ.  Pro. ,  ^  2222.)     For 

proceedings  in  that  ciisc,  sec  id  sidiou. 


1028  Foinrs  Relating  to 

that  the  matters  of  fact  therehi  stated  are  true,  to  the  best 
of  said  petitioner'' s  knowledge  and  belief. 

J.  K. 
[Jurat  as  in  form  No.  46.] 


No.  1149. 
Order  upon  Presentation  of  Petition. 

(Code  Civ.  Pro.,  §2224.) 

[At,  etc.,  as  in  form  No.  80.] 
[Title  of  proceeding.] 

On  reading  and  tiling  the  petition  of  J.  K.,  dated , 

18 — ,  praying  for  the  appointment  of  one  or  more  trustees 
to  take  charge  of  the  i)roperty  of  A.  B.,  who  is  imprisoned 

in  the  [name  prison,  etc.],  at ,  for  the  term  of 

years  for  the  offense  of ,  pursuant  to  the  provisions 

of  article  fonrtli  of  title  first  of  chapter  seventeenth  of  the 
Code  of  Civil  Procedure,  to  which  petition  are  annexed  a 
copy  of  the  sentence  of  conviction  of  said  A.  B.,  duly  certi- 
fied and  verified  as  required  by  law,  and  the  other  papers 
required  by  said  article,  and  on  motion  of  M.  G.,  of  counsel 
for  said  x^etitioner : 

It  is  hereby  ordered,  [*]  that  all  the  creditors  of  said  pris- 
oner, and  all  persons  interested  in  his  estate,  show  cause  at, 
etc.,  on,  etc.,  why  such  an  appointment  should  not  be  made 
[add  directions  for  manner  of  service  of  the  order]. 

[Or  as  above  to  (*),  and  from  thence  as  follows :  That 
M.  H.  (and  G.  L.)  be  and  he  is  {or  they  are)  hereby  appointed 
trustee  {or  trustees)  of  the  property  of  the  said  A.  B.,  pur- 
suant to  the  provisions  of  said  article.'] 


No.  1150. 
Order  upon  the  Return  of  Order  to  Show  Cause  (No.  1149). 

(Code  Civ.  Pro.,  §2225.) 

[At,  etc.,  as  in  form  No.  80.] 
[Title  of  proceeding.] 
Upon  the  return  of  the  order  to  show  cause,  granted 

•  As  to  effect  of  order  appointing  trustee,  see  Code  Civ.  Pro.,  ^  2226. 


Summary  Proceedings  for  Real  Property.    1029 

herein  by  this  court,  on  the day  of ,  IS — , 

pursuant  to  the  provisions  of  article  fourth  of  title  fir^t  of 
chapter  seventeenth  of  the  Code  of  Civil  Procedure,  witli 
proof  of  due  service  thereof  as  required  thereby,  and  the 
court  having  heard  the  allegations  and  proofs  of  the  credi- 
tors and  other  persons  interested  in  the  estate  of  A.  B.,  avIio 
have  appeared,  and  it  appearing  that  the  said  A.  B,  is  in- 
debted to  [the  petitioner  and  to  other  persons] :  [^] 

It  is  hereb}^  ordered,  that  M.  H.  [and  G.  L.]  be  and  he  is 
\or  they  are]  hereby  appointed  trustee  [or  trustees]  of  the 
property  of  said  A.  B.,  pursuant  to  the  provisions  of  article 
fourth  of  title  first  of  chapter  seventeenth  of  the  Code  of 
Civil  Procedure. 

[Or  as  above  to  (*),  and  from  thence  as  follows  :  And  the 
persons  interested  in  the  property  of  said  A.  B.  having  paid 
such  indebtedness  {or  given  security  for  the  pajmient  of 
such  indebtedness  as  the  court  has  prescribed) :  It  is  hereby 
ordered,  on  motion  of,  etc.,  that  the  prayer  of  the  petitioner 
be  denied.'] 

TITLE  II. 

FORMS  RELATING  TO  SUMMARY  PROCEEDINGS  TO  RECOVER 
THE  POSSESSION  OF  REAL  PROPERTY. 

(Code  Civ.  Pro.,  Ch.  17,  Tit.  2.) 

No.  1151.     Petition  by  landlord,  etc.,  under  subdivision  1  of  section  2231  of 
Code  Civil  Procedure. 

1152.  Same  petition,  under  subdivision  2  of  section  2231  of  Code  Civil 

Procedure. 

1153.  Same  petition,  under  subdivision  3  of  section  2231  of  Code  Civil 

Procedure. 

1154.  Same  petition,  under  subdivision  4  of  section  2231  of  Code  Civil 

Procedure. 

1155.  Same  petiti.on,  under  subdivision  5  of  section  2231  of  Code  Civil 

Procedure. 

1156.  Notice  to  pay  rent  or  to  surrender  possession  of  premi.ses. 

1157.  Notice  to  pay  taxes  or  assessments,  or  to  surrender  possession  of 

premises. 

1158.  Petition  by  person  entitled  to  possession  of  real  property,  under 

subdivision  1  of  section  2232  of  Code  Civil  Procedure. 


'  Or  the  prayer  of  the  petition  may  tee,  see  (id.)  §  2220;  duiics  of  trustee, 
be  granted  as  justice  requires.     (Code  (id.)  §^2228,  2229;  applicatioiiofarliclo 
Civ.  Pro  ,  t;  2225.  4.  tit.  1,  ch.  17,  Code  Civ.  Pro..  see- 
As  to  effect  of  order  appoiiiliug  trus-  (ion  2230  (id.). 


1030  Forms  Relating  to 

No.  1159.     Same  petition,  under  subdivision  2  of  section  22S2  of  Code  Civil 
Procedure. 

1160.  Same  petition,  under  subdivision  3  of  section  2232  of  Code  CivQ 

I'rocednre. 

1161.  Siune  petition,  under  subdivision  4  of  section  2232  of  Code  Civil 

Proeedine. 

1162.  Petition  for  removal  of  a  person  for  forcible  entry  or  detainer. 

1163.  Notice  to  tenant  at  will  or  at  sufferance  to  remove. 

1164.  Notice  in  cases  specified  in  section  2232  of  Code  Civil  Procedure. 

1165.  Notice  to  landlord  or  owner  of  premises  occupied  as  a  bawdy- 

bouse,  etc. 

1166.  Petition  by  one  in  the  neighborhood  of  bawdy-house,  etc.,  for  re- 

moval of  occupant. 

1167.  Precept  upon  presentation  of  petition. 

1168.  Afiidavit  of  service  of  precept. 

1169.  Answer  to  petition  upon  return  of  the  precept. 

1170.  Final  order  upon  return  of  the  precept  or  upon  trial. 

1171.  "Warrant  to  dispossess  tenant,  etc. 

1172.  Ileturn  of  officer  to  warrant. 

1173.  Undertaking  to  effect  stay,  under  subdivision  1  of  section  2254  of 

Code  Civil  Procedure. 

1174.  Same,  iinder  subdivision  2  of  section  2254  of  Code  Civil  Procedure. 

1175.  Same,  under  subdivision  3  of  section  2254  of  Code  Civil  Procedare. 

1176.  Affidavit  to  be  made,  under  subdivision  3  of  section  2254  of  Code 

Civil  Procedure,  to  obtain  stay. 

1177.  Notice  by  creditor  of  lessee  of  his  intention  to  redeem. 

1178.  Petition  of  person  redeeming  premises. 

1179.  Order  to  show  cause  upon  petition,  No.  1178. 

1180.  Final  order  upon  the  return  of  order  to  show  cause,  No.  1179. 

1181.  Noti(;e  of  appeal  from  final  order,  under  title  2  of  chapter  17  of 

Code  Civil  Procedure. 
1183.     Undertaking  on  appeal  from  final  order,  under  section  2262  of  Code 
Civil  Procedure. 

1183.  Order  of  reversal  of  final  order. 

1184.  Complaint  in  action  for  recovery  of  damages  sustained  by  dispos- 

session, where  final  order  is  reversed  on  appeal. 


No.  1151. 

Petition  by  Landlord,  etc.,  nnder  Snbdiyision  1  of  Section 
2231  of  Code  of  Civil  Procednre. 

(Code  Civ.  Pro.,  §2235.) 

To  the  {naming  offi^cer  or  court] : ' 

The  petition  of  T.  W.  [or  of  C.  F.] '  respectfully  shows,  [**] 
that  F.  G.  is  a  tenant  [or  lessee]  at  will  {or  at  sufferance,  or 

'See  pection  22B4  of  Code  Civ.  Pro.,     as  to  where  and  to  whom  the  applica- 
i\3  amended  by  chap.  946  of  Laws  of    tion  is  to  be  made. 
1895,   taking  effect   January  1,  1896,         ^Insert  here  name  of  agent,  when 

application  is  made  by  agent. 


Summary  Proceedings  for  Real  Property.    1031 

for  i^art  of  a  year,  or  for  one  year,  or  for  years] 

of  all  and  singular  [here  describe  property],  under  a  lease 
thereof  to  him,  from  your  petitioner  {or  from  T.  W.],  made 

[and  executed],  on  or  about  the day  of , 

18—,  to  continue  for  the  term  of from  the 

^ay  of ,  18—  \or  during  the  will  and  pleasure  of 

your  petitioner  (or  of  said  T.  W.)],  at  the rent  of 

dollars,  payable •  [ft] '  [and  that  G.  H.  is  the 

assignee  of  the  interest  of  said  F.  G.  in  said  lease  {or  that 
I.  J.  is  the  under  tenant  of  said  F.  G.  of  said  demised 
premises,  or  of  a  portion  of  said  demised  premises,  de- 
scribing it)]  [f],'  and  that  said  F.  G.  \pr  that  said  G.  H.]' 
holds  over  and  continues  in  the  possession  of  said  demised 
premises  [or  of  a  portion  of  said  demised  premises,  to  wit, 
describing  it]  [:}:]  after  the  expiration  of  his  term,  without 
the  permission  of  your  petitioner  \or  of  said  T.  W.],  who  is. 
his  landlord,  and  who  owns  the  said  property  in  fee  \or 
state  other  interest].  [*] 

[That  your  petitioner  is  the  agent  of  said  T.  W.,  and  is 
authorized  as  such  to  institute  j^roceedings  for  the  removal 
of  said  F,  G.  from  the  said  premises.]* 

[That  your  petitioner  (or  the  said  T.  W.)  has  given  one 
month's  notice,  in  writing,  to  said  F.  G.  {or  to  said  G.  H.),' 
as  required  by  law,  in  order  to  terminate  the  said  tenancy, 
requiring  him  to  remove  from  said  premises,  which  said 

notice  was  served  on  said  F.  G.  on  the day  of 

,  18-/] 

'  If  the  lease  came  to  the  petitioner  71),  People  ex  rd.  Wyman  v.  Johnson, 

or  his  principal  by  assignment,  state  (1  T,  &  C,  578),  People  ex  rel.  Tuttle 

who  the  original  parties  were,  and  that  v.  Walton  (3  T.  &  C,  534). 
it  was  so  assigned.  ^  This  is  required  to  be  stated  by  sec- 

'  If  there  are  two  or  more  persons  tion  3236  of  Code  Civ.  Pro. ,  in  the  case 

against  whom  the  special  proceeding  of  a  tenancy  at  will  or  at  sufferance 

is  instituted,  and  some  are  under-ten-  where  the  tenant  is  proceeded  against 

ants    or    assigns,    the    petition    must  for  holding  over  after  the  expiration  of 

specify  who  are  principals  or  tenants  his  term.     See  for  notice  required,  1 

and  who  are  under-tenants  or  assigns.  R.  S.,  745,  §§  7,  8  (7th  ed.,  2201). 
(Code  Civ.  Pro.,  §  2335.)  That  the  notice  is  to  be  given  to  the 

See, also.  Croft  v.  King  (8  Daly,  2G5;  innncdiate  tenant  or  his  assignee,  .see 

1  City  Ct.  R.,  157),  Ash  v.  Purnell  (32  Taylor  on  Land,  and  Tenant,  ^  481; 

State  Rep.,  30^; ;  iJG  Abb.   N.  C.  92).  (.itj„jr  Doe  v.  Williams  (G  H.  &  P..  41). 

'This  clause  in  brackets  is  intended  .^^       jjj,.,,^.^,,  ^  ]>i,iiiips(l7  Wend., 

loi-  th'^  cape  of  Hri  unsigriee. 

*See  Cunniiiijhaiii  v.  Goelet  (4  Denio,  '*^"^'  •*'«*)■ 


1032  Forms  RELATixa  to 

Wherefore  your  petitioner  j^rays  for  a  final  order  to  re- 
move said  F.  G.  [and  G.  H.,  etc.],  from  said  real  property, 
according  to  the  provisions  of  title  second  of  chapter  seven- 
teenth of  the  Code  of  Civil  Procedure.' 

Dated ,  18—. 


[Verification  as  in  form  No.  52] 


T.  W.  [or  C.  F.J 


No.  1152. 

Same  Petition,  under  Suhdivision  2  of  Section  2231  ol 
Code  of  Civil  Procedure. 

(Code  Civ.  Pro.,  §  2235) 

As  in  form  No.  1151  to  [:{:],  and  from  thence  as  follows : 
Without  the  permission  of  your  petitioner  [or  of  said  T, 
W.],  who  is  his  landlord,  after  a  default  in  the  payment  of 
rent,  pursuant  to  the  agreement  under  which  the  said  de- 
mised premises  are  held,  to  wit:  of  the  rent  falling  due, 

by  the  terms  of  said  agreement,  on  the day  of 

,  18 — ,  and  that  a  demand  of  said  rent  has  been 

made  [or  that  three  days  previous  notice  in  writing  requir- 
ing, in  the  alternative,  the  payment  of  such  rent  or  the 
possession  of  the  said  premises  has  been  served]  on  behalf 
of  the  said  petitioner  [or  of  said  T.  W.]  on  the  said  F.  G. 

*By  slight  changes,  this  form  may  O'Day  (1  Misc.,  165),  Nemetty  v.  Tay- 

be  made  to  meet  the  case  of  a  legal  lor  (100  N.  Y.,   562),  Zink  v.  Bohn  (3 

representative  either  of  the  lessor  or  N.  Y.  SSupp.,  4),  Matter  of  Hosley  (oli 

lessee.    See,  also,  amendment  lo  Bubd.  Hun,  240),  Hasbiouck  v.   Stokes   (13 

1  of  section  2281   of  Code  Civ.   Pro.,  N.  Y.  «upp.,  333),   McDonald   v.   Mc- 

by  chap.  333  of  Laws  of  1S94,  taking  Lauiy    (ivfra),   Manhattan    Life    Ins. 

effect   September    1,    1894.       And  see  Co.  v.  Gosford  (3   Misc.,  50ro,  Stover 

Barry  v.  Smith  (G9  Hun,  88,  aff'g  S.  v.  Chasse  (6  id.,  394),  Peer  v.  O'Leary 

C,  i  Misc.,  240).  (8  id.,  3j0),  Lowman  v.  Spi-ague  (73 

The  statute  applies  to  proceedings  Ifun,  408),  People  ex  rel.  Baldwin  v. 

against  corporate  bodies.      (Brown  v.  Goldfogle  (23  Civ.  Pro.  R.,417),  Galla- 

The  Mayor,  66  N.  Y.,  385 ;  aflTg  S.  C,  gher  v.  David  Stevenson  Brewing  Co. 

r>  Daly,  481.)  (13  Misc.,   40),   "Wyckoff  v.   Frommer 

In  order  to  authorize  the  proceeding  {ivfra),    Goelet   v.  Roe    (14    id.,    28), 

against  a  person  as  a  tenant  of  the  Pearson    v.    Germond    (S3    Ilun,    88), 

petitioner,  the  conventional  i-elation  of  Bailey    v.     Crowell     (13    Misc.,    63), 

landlnid  and  tenant  must  exist.    (Peo-  Cowdrey  v.  Turner   (i?//ra),  Bixby  v. 

pie  v.   Howlett,  76  N.   Y.,  574  ;  aff'g  Casino  Co.   (14  Misc  ,  340),  Earle  v. 

S.  C,  13  Hun,  138  )  McGoldrick   (hijra),  Swiglt-y  v.  Jones 

See.  also,  People  v.  Shorb  (14  Hun,  (1  City  Ct,,  l:i7),  BuUman  v.  Kinde'on 

112),  Peoj.le   V.  Angel  (01   How.  Pr.,  (J  Civ.  Pro.  R.,  47),  Campbell  v.  Bab- 

i:,!).  Bn.'^iwick  v.  Frankfield  (11  Hun,  cock    (26    Abb.    N.    C,  3:')),   Kelly  v. 

475 ;  aff'd  74  N.  Y.,  207),  Donelly  v.  Smith  (41  Sta*e  Rep.,  620),  Penoyer  v. 


Forms  Helating  to 


1032a 


Brown  (13  Abb.  N.  C,  82).  Weisen- 
bach  V.  Pokalski  (Daily  Reg.,  Dec. 
14,  1888),  Michenfelder  v.  Gunther  (66 
How.  Pr.,  464),  Brainard  v.  Hudson 
(1  City  Ot.,  448),  Ottinger  v.  Prince  (2 
id.,  353),  Mahan  v.  Sewell  (6  N.  Y. 
Supp.,  662),  Kramer  V.  Amberg  (4  id., 
613),  Shaw  V.  McCarthy  (11  Daly. 
150),  Matter  of  Matthews  (49  Hun, 
346),  Barnum  v.  Fitzpatrick  (27  id., 
334),  Barry  v.  Smith  (69  Hun,  88), 
Donelly  v.  O'Day  (1  Misc.,  165), 
Durant  Land,  etc.,  Co.  v.  Thompson- 
Houston  Electric  Co.  (2  id.,  182),  Lang 
V.  Everling  (3  id.,  530),  Stover  v. 
Chasse  (6  Misc.,  394),  Peer  v.  O'Leary 
(8  id.,  350),  Cottle  v.  Sullivan  (id., 
184),  Estelle  v.  Dinsbeer  (9  id.,  487), 
Lowman  v.  Sprague    (73   Hun,    408), 

A  ward  may  take  this  proceeding 
upon  a  lease  made  by  his  guardian. 
(People  V.  IngereoU,  20  Hun,  316.)  As 
to  guardian  ad  litem  for  infant,  see 
Jessurun  v.  Mackie  (24  Hun,  624). 

A  demand  of  rent,  with  interest,  does 
not  invalidate  the  proceedings.  (Peo- 
ple V.  Dudley,  58  N.  Y.,  323.)  See, 
further,  as  to  demand.  People  v.  Gross 


(50  Barb.,  231),  People  v.  Piatt  (43 
Barb.,  116),  Wyckoff  v.  Frommer 
(ivfra). 

Further,  as  to  contents,  etc.,  of  peti- 
tion, see  People  v.  Matthews  (38  N. 
Y.,  451),  People  v.  Boardman  (4 
Keyes,  59),  People  v.  Teed  (48  Barb., 
424;  S.  C,  33  How.  Pr.  R.,  238), 
Campbell  v.  Mallory  (22  How.  Pi'., 
183),  Kent  v.  Sturges  (Daily  Reg., 
June  4,  1884),  Posson  v.  Dean  (8  Civ. 
Pro.  R.,  177),  Coatesworth  v.  Thomp- 
son (5  State  Rep.,  309),  Holzderber  v. 
Forrestal  (13  Daly,  34),  Ash  v.  Pui- 
nell  (32  State  Rep.,  306;  26  Abb.  N. 
C,  92),  McDonald  v.  McLaury  (43 
State  Rep.,  512),  Drummond  v.  Fisher 
(45  id.,  283),Fuch8  v.  Cohen  (29  Abb. 
N.  C,  56),  Hoflfman  v.  Van  Allen  (3 
Misc.,  99;,  Cowdrey  v.  Turner  (85 
Hun,  451),  Wyckoff  v.  Frommer  (12 
Misc.,  149),  Earle  v.  McGoldrick  (15 
id.,  135),  "Ward  v.  Burgher,  90  Hun, 
540). 

See  People  ex  rel.  Crawford  v.  De 
Camp  (12  Hun,  378),  as  to  defective 
affidavit. 


Summary  Proceedings  for  Real  Property,   1033 

[or  upon  the  said  G.  H.] '  in  the  manner  prescribed  in  title 
second  of  chapter  seventeenth  of  the  Code  of  Civil  Pro- 
cedure, for  the  service  of  a  precept,  as  appears  by  the  affida- 
vit hereto  annexed,  and  that  said  rent  still  remains  unpaid. 
That  your  petitioner  [or  said  T.  W.  j  owns  said  premises 
in  fee  [or  state  other  interest]. 

[Conclude  as  in  form  No.  1151,  from  C^).*] 

[Date,  signatiire  and  verification  as  in  form  No.  1151.] 


No.  1153. 

Same  Petition,  under  Subdivision  3  of  Section  2231  of 
Code  of  Civil  Procedure. 

(Code  Civ.  Pro.,  §2235.) 

As  in  form  No.  1151  to  [:{:],  and  from  thence  as  follows : 
After  default  in  the  paj^ment  for  sixty  days  after  the  same 
have  become  payable  of  taxes  [or  assessments]  levied  on 
such  demised  premises  which  he  [or  which  the  said  F.  G.y 
has  agreed  in  writing  to  pay  pursuant  to  the  said  agreement 
under  which  the  said  demised  premises  are  held,  and  that 
a  demand  for  the  payment  of  said  taxes  [or  assessments] 
has  'jeen  made  upon  said  F.  G.  [or  that  three  days'  notice 
in  writing  requiring,  in  the  alternative,  the  payment  thereof 
and  of  any  interest  or  penalty  thereon,  or  the  possession  of 
said  premises  has  been  served  upon  said  F.  C,  as  prescribed 
in  title  two  of  chapter  seventeenth  of  the  Code  of  Civil  Pro- 
cedure for  the  service  of  a  precept,  as  appears  from  the  affi- 
davit hereto  annexed]  in  behalf  of  said  T.  W.,  who  is  his 

'Insert    these    words    in    brackets  Hun,  67.)     And  see  McDonald  v.  Mc- 

where   the   proceedings    relate  to  an  Laury  (43  State  Rep.,  512). 

assignee,  of  the  lessee.  See,  also,  Brainard    v.    Hudson   (1 

Where  the  only  proof  of  a  demand  City   Ct.  Rep  ,  448),  People  v.  Pauld- 

for  the  rent  was  contained  in  an  affi-  ing  (22  Hun,  91),  Armstrong  v.  Cum- 

davit,  stating  that  the  affiant  "  has  de-  mings  (20  Hun,  313),  People  v.  Loomis 

manded  the  said  rent  by  a  three  days'  (27  Hun,  328). 

notice,  in  writing,  a  copy  of  which  is  'See  notes  to  form  No.  1151. 

annexed;"   held,    that     the    affidavit  'Insert    these    words    in    brackets 

failed  to  show  such  a  service  of  a  writ-  where   the   proceedings   relate  to  an 

ten  demand  of  the  rent  as  the  statute  assignee,  of  the  lessee, 
requires.      (People    v.    Keteltas,    12 
130 


1034  FoKMtf  Relating  lo 

landlord,  and  owns  said  property  in  fee  [or  state  other 

interest]. 

[Conclude  as  in  form  No.  1151  from  (*).'] 

[Date,  signature  and  verilication  as  in  form  No.  1151.] 


No.  1154. 

Same  Petition,  uuder  Subdivision  4  of  Section  2231  of  Code 
of  Civil  Procedure. 

(Code  Civ.  Pro..  §2235.) 

As  in  form  No.  1151  to  [ffj,  so  far  as  that  form  is  appli- 
cal)le  to  a  tenancy  for  a  term  of  three  yearc  or  less,  and  from 
thence  as  follows :  And  that  said  F.  G.  [naming  tenant  or 
lessee  \  being  in  possession  under  the  said  lease,  has,  during 
the  term  thereof,  taken  the  benefit  of  an  insolvent  act  to  wit : 
the  act  entitled  "An  act,  etc."  [or  has  been  adjudicated  a 
bankrupt  under  the  laws  of  the  United  States]. 

That  your  jjetitioner  [or  .-^aid  T.  W.J  is  the  owner  of  said 
premises  in  fee  [or  state  other  interest). 

[Conclude  as  in  form  No.  1151  from  C'^).'] 

[Date,  signature  and  verification  as  in  form  No.  1151.] 


No.  1155. 

Same  Petition,  under  Subdivision  5  of  Section  2231  of  Code 
of  Civil  Procedure. 

(Code  Civ.  Pro.,  g  2235.) 

As  in  form  No.  1151  to  [ft],  and  from  thence  as  follows : 
And  that  [a  part  of]  the  said  demised  premises  are  used  [or 
occupied]  as  a  bawdy-house  [or  house  of  assignation  for 
lewd  persons,  or  for  an  illegal  trade  {or  manufacture,  or  busi- 
ness), to  wit  (naming  same)].   [*] 

That  your  petitioner  [or  that  said  T.  W.]  is  the  owner  of 
said  property  in  fee  [or  name  other  interest]. 

[Conclude  as  in  form  No.  1151  from  (*).n 

[Date,  signature  and  verification  as  in  form  No.  1151.] 

'  See  notes  to  form  No.  1151,  and  see  relates  to  any  city  in  the  State.     (Id., 

Witty  v.'Acton  (20    State   Rep.,  653),  subd.) 

Sperling  v.  Isaacs  (13  Daly, 275),  Bixby  "^  See  notes  to  form  No.  1151. 

V.  Casino  Co.  (14  Misc.,  34G).  =See  notes  to  form  No.  1151. 

This  proceeding,  under  subd.  3  of  This  proceeding  cannot  be  main- 
section  2231  of  Code  Civ.  Pro.,  as  taiiied,  under  subd.  4  of  section  2231 
amended  by  ch.  13  of  Laws  1885,  only  (subd.  5  of  that  section  as  amended  by 


Summary  Proceedings  for  Real  Property.   1035 

No.  1156. 
Notice  to  Pay  Rent  or  to  Surrender  Possession, 

(Code  Civ.  Pro.,  §  2231,  siibd.  2.) 

ToG.  D.: 
You  will  take  notice,  that  you  are  indebted  to  me  in  the 

sum  of dollars  for  rent  of  the  [house  and  premises 

No.  — ,  in street,  in  the  village  {or  city)  of ], 

now  occupied  hy  you,  and  that  I  require,  in  the  alternative, 

the  payiuent  of  said  rent  on  or  before  the day  of 

,  18 — ,  or  the  possession  of  the  said  premises.' 

Dated ,  18—. 

Yours,  etc., 

A.  B.,  Landlord. 

No.  1157. 

Notice  to  Pay  Taxes  or  Assessments  or  to  Surrender  tke 
Possession  of  Premises. 

(Code  Civ.  Pro.,  S=  2231,  subd.  3.) 

7^0  CD.: 

You  will  take  notice,  that  default  has  been  made  by  you 
in  the  payment  of  taxes  \or  assessments]  levied  upon  the 
premises  [describing  them],  which  you  have  agreed,  in 
writing,  to  pay,  pursuant  to  the  agreement  under  which  the 
said  premises  are  held  by  you,  to  wit :  the  taxes,  etc.  [stating 
them],  and  that  I  hereby  require,  in  the  alternative,  the  pay- 
ment of  said  taxes  [or  assessments],  and  of  any  interest  and 

penalty  thereon,  on  or  before  the day  of , 

18 — ,  or  the  possession  of  said  premises.'' 

Dated ,  18—. 

Yours,  etc., 

A.  B.,  Landlord. 

ch.  13  of  1885),  where  the  illegal  use  [McCarty],  47),  Prouty  v.    Prouty  (o 

or  occupation  of  the  premises  has  1)e('n  How.    Pr.,  81),  Moench   v.  Yvug  (29 

discontinued  before  the  proceedings  are  State  Rep.,  731). 

commenced.  (Shaw  v.  McCarty,  63  For  pro(;eeding  by  owner  or  tenant 
How.  Pr.,  286;  14  Week.  Dig.,  009  [N.  of  real  .property  in  the  immcdiale 
Y.  C.P.,Gen.  Tm.];  Jonesv.  Demady,  neighborhood  of  real  property  occu- 
2  Civ.  Pro.  R.  [McCarty],  246.)  pied  as  a  bawdy-house,  etc.,  for  re- 
See,  also,  People  v.  McCarty  (62  moval  of  tenant,  etc.,  see  .section  2237, 
How.  Pr.,  l.')2;  13  Week.  Dig.,  237),  Code  Civ.  Pro.,  and  for  forms  of  notice 
People  V.  Bennett  (14  Ilun,  58,  63),  iind  petition  midcr  that  section,  see 
■Bultniuii   V.    Kindelon  (2  Civ.  Pru.  R.  forms  Nos.  1165,  1166. 


1036  Forms  Relating  to 

No.  1158. 

Petition  by  Person  Entitled  to  Possession  of  Real  Prop- 
erty, under  Subdivision  1  of  Section  2232  of  Code  of 
Civil  Procedure. 

As  in  form  No.  11,51  to  [*^'J,  find  from  thence  as  follows: 
That  on  the day  of ,  18—,  the  real  prop- 
erty hereinafter  described  was  sold  by  the  sheriff  of 

connt)^  at  public  auction,  after  due  notice,  at ,  in  the 

county  of ,  at o'clock  in  the noon, 

by  virtue  of  an  execution  against  the  property  of  C.  D., 

issued  upon  a  judgment  of  the court,  rendered  on 

the day  of ,  18 — ,  in  favor  of  A.  B.  against 

the  said  C.  D.  for  the  sum  of dollars,  the  judgment 

roll  whereupon  was  filed  and  said  judgment  duly  docketed 

in  the  [said]  county  of on  that  day  j  and  which  said 

judgment  was  duly  docketed  in  the  county  of on 

the day  of ,  18— J.* 

That  [your  petitioner]  became  the  purchaser  upon  such 
sale. 

That  the  said  C.  D.  is  now  in  possession  of  said  real  prop- 
erty [or  that  said  real  property  w^as  owned  by  said  C.  D.  at 
the  time  of  the  recovery  of  said  judgment  and  the  docket- 
ing thereof  as  aforesaid,  but  that  the  same  has  since  been 
conveyed  and  is  now  owned  by  E.  F.,  who  is  in  possession 
thereof,  claiming  title  thereto  under  the  said  C.  D], 

That  on  the day  of ,  18—,  the  title  of 

[your  petitioner]  in  said  real  property  was  perfected  by  the 
execution  and  delivery  to  [your  petitioner]  of  a  deed,  pur- 
suant to  said  sale,  of  all  the  right  and  interest  which  said 
C.  D.  had  therein  at  the  time  said  judgment  was  docketed 

in  the  said  county  of as  aforesaid,  or  at  any  time 

thereafter ;  and  that  [your  petitioner]  is  now  the  owner  in 
fee  of  said  premises  under  said  deed  [or  state  other  interest]. 

That  on  the day  of ,  18—,  a  notice  in 

behalf  of  [your  petitioner]  requiring  all  persons  occupying 
the  said  property  to  quit  the  same  by  the day  of 

•  For  affidavit  of  service  of  tliis  notice  tice,  which  is  tae  same  as  of  a  precept, 

%\'hich  is  the  same  as  of  a  precept,  see  see  form  No.  1168. 

form  No.  1168.  '  Insert  this  clause  in  brackets  when 

"  For  affidavit  of  service  of  this  no  liie  property  has  been  sold  in  a  county 


Bttmmaey  Peoceedings  for  Keal  Pkoperty.   1037 

,  18 — ,  was  served  personally  upon  said  C.  D.  [or 

Tas  affixed  conspicuously  upon  said  property],  but  that 
said  C.  T>.  holds  over  and  continues  in  possession  of  said 
real  property. 

'^That  your  petitioner  is  the  agent  of  said ,  and 

f\s  such  is  duly  authorized  to  take  this  proceeding  for  the 
removal  of  said  C.  D.  {or  E.  F.)  from  said  premises.'] 

The  following  is  the  descri^Dtion  of  the  said  real  property, 
to  wit  [describing  same]. 

Wherefore  your  petitioner  prays,  etc.,  as  in  form  No. 
1151.' 

Dated ,  18—. 

[Signature  and  verification  as  in  form  No.  1151.] 


No.  1159. 

Same  Petition,  under  SulMlivision  2  of  Section  2232  of  Code 
of  Civil  Procedure. 

(Code  Civ.  Pro.,  §2235.) 

As  in  form  No.  1151  to  [**],  and  from  thence  as  follows : 

That  on  the day  of ,  18 —  [your  petitioner], 

became  the  purchaser  of  the  real  x>i'operty  hereinafter  de- 
scribed, at  a  sale  thereof,  duly  made  upon  the  foreclosure 
of  a  mortgage,  by  proceedings  taken  as  prescribed  in  title 
ninth  of  chapter  seventeenth  of  the  Code  of  Civil  Proced- 
ure, which  said  mortgfjge  was  dated ,  18 — ,  and  was 

executed  by  C.  D.  [and  his  wife,  M.  D.]  [or  by  E.  P.  (and 

other  than  that  in  which  the  judgment  be  inquired  into.     (Jack  v.  Cashin,  1 

roll  is  filed.  City  Ct.,  72;  Getting  v.  Mohr,  supra.) 

'  See  note  4  to  form  No.  1151.  If  there  are  tenants  or  assigns,  etc., 

*  As  to  what  facts  are  necessary  to  of  the  person  holding  over  they  must 

ecnf'i'r  jurisdiction  in  this  proceeding,  be  made    parties    and    their    interest 

see   Getting-  v.  Mohr  (20  Week.  Dig.,  stated.     See  note  2,  p.  1031,  to  form 

367).     Pame  case  (34  Hun,  340).  No.  1151. 

To  maintain  this  proceeding  in  case  See,  also.  People  v.  ^IcAdam   (bl 

of  a  sale  of  leasehold  interest  under  N.  Y.,  287;  rev'g  S.  C,  22  Hun,  559) 

execution,  the  sale  must  be  advertised  Territt  v.  Cowenhoven  (79  N.  Y.,  400; 

and  conducted  as  required  by  law  for  aff'g  S.  C,  11  Ilun,  320);  and  under  a 

ft  sale  of  real  property.     (Mitnaclit  v.  similar  statute.  People   v.  "Walsh  (87 

Oo<;ks,  or,  How.  T'r.,  84.)  N.Y.,  481),  People  v.  Palmer  (IG  Hun, 

But  no  irregularity  in  the  judgment  ^M\). 
.■;n  which  the  execution  was  issued  can 


1038  Forms  Relatin^g  to 

J.  F.,  his  wife),  under  whom  C.  D.  claimed  said  real  prop- 
erty] to  M.  N.,  and  described  said  property 

That  the  title  of  (your  j^etitionerj  under  the  said  foreclos- 
ure, has  been  duly  perfected. 

That  said  C.  D.  holds  over,  and  continues  in  possession  of 
said  real  propertj^,  after  a  notice  to  quit  has  been  given,  as 
prescribed  in  section  2236  of  the  Code  of  Civil  Procedure, 
in  behalf  of  [your  ijetitioner]  requiring  all  persons  occupy- 
ing the  said  property  to  quit  the  same  by  the day 

of 18—,  which  said  notice  was  served  personally 

upon  the  said  C.  D.  \or  affixed  conspicuously  upon  the  said 

property]  on  the day  of ,  18 — ,  and  after 

the  perfecting  of  [your  petitioner's]  title  as  aforesaid. 

[If  the  petition  is  made  by  the  agent  of  the  purchaser, 
insert  statements  as  to  such  agency  as  in  form  No  1151.  J 

That  your  petitioner  owns  the  said  property  in  fee  [or 
state  other  interest]^ 

The  following  is  the  description  of  said  real  property, 
to  wit  [describe  same]- 

Wherefore,  etc.  [prayer  as  in  form  No.  1151],^ 

Dated .  18—. 

T.  W.  \pr  C.  F.] 

[Verification  as  in  form  No.  52.  J 


No.  1160. 


Same  Petition,  under  Subdivision  3  of  Section  2232  of  Code 
of  Civil  Procedure. 

(Code  Civ.  Pro..  §  2235  ) 

As  in  form  No.  1151  to  [**],  and  from  thence  as  follows : 
That  C.  D.  occupies  and  holds  the  real  property  hereinafter 
described,  under  an  agreement  with  [your  petitioner],  who 
is  the  owner  thereof  in  fee  simple  {or  state  other  interest], 
to  occupy  and  cultivate  it  upon  shares  [or  for  a  share  of  the 
crops  thereof]. 

That  the  time  fixed  by  said  agreement  for  the  occupancy 
by  said  C.  D.  of  said  real  property  has  expired. 

That  said  C.  D.  holds  over  and  continues  in  possession  of 
the  said  real  property  after,  etc.  [insert  same  statements  in 

'See  notes  to  forms  Nos.  1151, 1158,  State  ex  rel.  Dewey  v.  Burdick  (5  N. 
and  see  Cowdrey  v.  Turner  (85  Hun,  Y.  Supp.,  363),  Goff  v.  Vedder  (12  Civ. 
452),  Lang-  v.  Everling  (3  Misc.,  530),     Pro.  R.,  358). 


Summary  Proceedings  for  Real  Property.   1039 

regard  to  notice  to  quit  as  in  form  No.  1159,  omitting  the 
statement  as  to  perfecting  of  title]. 

[If  tlie  i^etition  is  made  by  the  agent  of  the  purchaser, 
insert  statements  as  to  agency  as  in  form  No.  1151.] 

The  following  is  the  description  of  said  real  property, 
to  wit  [describe  same]. 

Wherefore,  etc.  [prayer  as  in  form  No,  1151].  * 

Dated ,  18—. 

T.  W.  [or  C  F.J 
[Verification  as  in  form  No.  52.] 


No.  1161. 

Same  Petition,  under  Subdivision  4  of  Section  2232  of  Code 
of  Civil  Procedure. 

(Code  Civ.  Pro.,  §  2235.) 

As  in  form  No.  1151  to  [**],  and  from  thence  as  follows : 
That  your  petitioner  is  the  owner,  in  fee  simple  \o?'  state 
other  interest],  and  is  entitled  to  the  possession  of  the  fol- 
lowing described  parcel  of  land,  to  wit :  All  that  certain, 

etc.,  situated,  in  the  city  of {or  in  the  incorporated 

village  of ),  in  the  county  of ,  and  State  of 

New  York,  bounded  and  described  as  follows,  to  wit  [de- 
scribe same]. 

That  C.  D.  [or  that  E.  F.,  to  whom  C.  D.  has  succeeded] 
has  intruded  into  [or  has  squatted  upon]  the  said  parcel  of 
land,  without  the  permission  of  [your  petitiont^r],  and  that 
the  occupancy  of  said  parcel  of  land,  then  commenced,  has 
continued  without  the  permission  of  [your  petitioner]. 

[Or  that  permission  was  given  by  (your  ])etitioner)  to  said 
C.  1).  {or  E.  F.)  to  occupy  said  parcel  of  land,  but  that  such 
permission  has  been  revoked,  and  that  notice  of  such  revo- 
cation has  been  duly  given  by  (your  petitioner)  to  the  said 
C.  D.] 

That  said  C.  D.  holds  over,  etc.  [insert  same  statement  in 
regard  to  notice  to  quit  as  in  form  No.  1159,  omitting  tlic 
statement  as  to  perfecting  of  title]. 


'  See  notes  to  forms  Nos  1151.  1158. 


1040  Forms  Relating  to 

[If  the  petition  is  made  by  the  agent  of  the  owner,  insert 
statements  as  to  such  agency  as  in  form  No.  1151.  ] 
Wherefore,  etc.  [prayer  as  in  form  No.  1151  J.' 
Dated ,  18—. 


[Verification  as  in  form  No.  52.  J 


T.  W.  [or  C.  F. 


No.  1162. 


Petition  for  RemoYal  of  a  Person  for  Forcible  Entry  or 

Detainer. 

(Code  Civ.  Pro.    §§  2233,  2235.) 

As  in  form  No.  1151  to  [*^J,  and  from  thence  as  follows : 

That  C.  D.  has  heretofore  and  on  or  about  the day 

of ,  18 — 5  made  forcible  entry  [or  made  entry  in 

a  peaceable  manner]  into  the  real  property  described  as 
follows,  to  wit  [describe  same],  and  has  forcibly  put  [your 
petitioner]  out  of  the  possession  [or  if  the  entry  was  peacea- 
ble say  :  and  forcibly  holds  (your  petitioner)  out  of  the  pos- 
session] of  the  said  real  property. 

That  your  petitioner  is  the  owner  of  said  real  property  in 
fee  simple  [or  state  other  interest],  and  was  such  owner  at 
the  time  of  such  entry  [or  at  the  time  of  such  forcible  holding 
out],  and  was  i^eaceably  in  actual  possession  of  the  said 
property  at  the  time  of  said  forcible  entry  [or  was  peaceably 
in  constructive  possession  of  said  property  at  the  time  of 
said  forcible  holding  out].^ 

[If  application  is  made  by  an  agent  insert  statements  as 
to  such  agency  as  in  form  No.  1151.] 

Wherefore  your  petitioner  prays,  etc.  [prayer  as  in  form 

No.  1151].* 

Bated ,  18—. 

T.  W.  [or  C.  F.] 
[Verificauon  as  in  form  No,  52„} 


'See  notea  to  forms  Nos.  1151,1158.  sections  2951,  2952  of  Code  Civ.  Pro., 

See,  also,  amemiment   to   subd.  4  of  relating  to  removal  of  causes  from  a 

section  2232  of  Code  Civ.  Pro  ,  by  ch.  justice's  court,  where  an  answer  is  in- 

232  of  Laws  of  1894,  taking' effect  Sept.  terposed  which   raises  a  question  of 

1,    1894;    Suydara   v.    Wood   (2    City  title  to  real  property,  do  not  apply  to 

Court  Rep.,  23),  O'Donnell   v.  Mcln-  summary  proceedings  for  the  removal 

tyre    (41     Hun,    100).     By    the    said  of  squatters  under   subdivision  4  of 

amendment     the    words    "any    real  section  2232  (id.).     (Matter   of  White, 

property  "  were  substituted  in  place  12  Abb.  N.  C.,  348.) 

of  '*  a  parcel  of  land  in  a  city  or  incor-  "  bee  section   2245,  Code   Civ.  Pro., 

porated  village."     The  provisions   of  and  see   People   v.  Van   Nostrand  (9 


Summary  Proceedings  for  Real  Property.   1041 

No.  1163. 
Notice  to  Tenant  at  Will  or  at  Sufferance  to  Remove. 

(Code  Civ.  Pro.,  §2236.) 

ToA.  B.: 

You  are  hereby  notified  that  you  are  required  to  remove 
from  the  property  [describing  it]  which  you  now  hold  of  me, 
at  the  expiration  of  one  month  from  the  service  of  this 
notice  upon  you,  pursuant  to  the  statute  relating  to  the 
rights  and  duties  of  landlord  and  tenant.* 


Dated 


18—. 


Yours,  etc., 

C.  D.,  Landlord. 


No.  1164. 

Notice  in  Cases  Specified  in  Section  2232  of  Code  of  Civil 

Procedure. 

(Code  Civ.  Pro.,  §2236.) 

To  C.  D.,  and  all  other  persons  occupying  the  premises 
hereinafter  described : 
You  and  each  of  you  are  hereby  required  to  quit  the 
prox^erty  described  as  follows,  to  wit  [describe  same],  by 
the day  of ,  18—.' 


Dated 


18- 


Yours,  etc., 

T.  W.  {or  C.  F.  agent  for  T.  W.]. 


Wend.,  50),  and  Bliss  v.  Johnson  (73 
N.  Y.,  529),  cited  in  note  1  to  form 
No.  745. 

'  See  note  1  to  form  No.  745,  and 
notes  to  forms  Nos.  1151,  1158. 

A  petition  alleging  a  peaceable  entry 
by  the  petitioner  and  a  forcible  ejec- 
tion fi-oni  the  premises  by  the  defend- 
ant is  insufficient,  under  section  2245, 
Code  Civ.  Pro.  (Kent  v.  Stui-ges,  N. 
Y.  Daily  Reg,  June  4,  1884).  See, 
also,  Compton  v.  "The  Chelnea  "  (139 
N.  Y.,  538  ;  y%\'^  S.  C,  70  Hun.  361), 
Schneider  v.  Leizmau  (57  Hun,  5(31). 

^  The  notice  need  not  specify  the 
time  within  which  the  premises  must 
be  surrendered,  and  if  a  day  is  speci- 
fied in  it  which  elapses  less  than  a 
mwnth  from  the  time  of  the  service  of 
the  notice,  it  will  not  vitiate  the  notii;e. 
It  is  8uftici»^nt  if  the  tetiaiit  have  one 
month's  notice,  in  writing,  of  )h(i  in- 
tention of   the    landlord  to   terminate 

].31 


the  tenancy.  (Bums  v.  Bryant,  31 
N.  Y.,  4.53  ;  People  v.  Schackno.  48 
Barb.,  551.)  See,  also.  Peer  v.  O'Leary 
(8  Misc.,  350). 

Wheie  a  lease  required  a  ten  days' 
notice  to  quit,  a  notice  i-equiring  the 
tenant  to  surrender  jiossession  as  soon 
as  practicable  was  helil  to  be  insuiii- 
cient.  (People  ex  rel.  Sanford  v.  Ged- 
ney,  15  Hun,  475.) 

As  to  requisites  of  notice,  see  1 
R.  S.,  745,  §§  7  and  8  (7th  ed.,  2201). 

As  to  service  of  the  notice,  see  Banks 
v.  Carter  (7  Daly,  417). 

'  The  Tiolice  must  be  served  at  least 
ten  days  b(;f()ie  the  day  specilied 
therein.  (Code  Civ.  Pro.,  §  223(5).  See 
as  to  notice  in  New  York  or  Brooklyn 
to  moiitlily  tenants  holding  over,  ch. 
357  <.f  Laws  of  1^80,  amd'g  ch.  308  of 
Laws  of  1882,  and  see  Simpson  v. 
MasHon  (11  Misc.,  351). 


1043  Forms  Relating  to 

No.  1165. 

Notice  to  Landlord  or  Owner  of  Premises  Occupied  as  a 
Bawdy-house,  etc. 

(Code  Civ.  Pro.,  §  2237.) 

To  T.  W. : 

You  are  hereby  notified,  pursuant  to  section  2237  of  the 
Code  of  Civil  Procedure,  that  you  are  required  to  make  an 
application  for  the  removal  of  the  person  or  persons  using 
[or  occupying]  the  premises  [describing  them],  which  are 
used  \ji)r  occupied]  as  a  bawdy-house  [or  as  a  house  of  assig- 
nation for  lewd  persons],  and  of  which  premises  you  are  the 
landlord  [or  owner]. 

Dated ,  18—. 

Yours,  etc., 
A.  B. 

No.  1166. 

Petition  by  one  in  the  Neighborhood  of  Bawdy-House,  etc., 
for  Removal  of  Occupant. 

(Code  Civ.  Pro.,  §2237.) 

Proceed  substantially  as  in  form  No.  1155  to  [*],  and 

from  thence  as  follows  :  That  your  petitioner  on  the 

day  of ,  18 — ,  served  [or  caused  to  be  served],  i^er- 

sonally,  upon  said  T.  W.,  a  written  notice,  pursuant  to  sec- 
tion 2237  of  the  Code  of  Civil  Procedure,  requiring  said  T. 
W.  who  is,  and  w^as,  at  the  time  of  the  service  of  such 
notice,  the  owner  [or  landlord]  of  said  demised  premises, 
owning  the  same  in  fee  [or  state  other  interest],  to  make  an 
application  for  the  removal  of  the  person  or  persons  using 
[or  occupying]  the  said  demised  premises. 

That  more  than  five  days  have  elapsed  since  the  service 
of  such  notice  upon  said  T.  W.,  and  that  said  T.  W.  has 
not  made  such  an  application. 

[Or  that  said  T.  AY.  has  made  such  application,  but  has 
not,  in  good  faith,  diligently  prosecuted  it  (state  the  facts 
showing  such  want  of  diligence).  ] 

Wlierefore  your  petitioner  prays,  etc.  [prayer  as  in  form 

No.  1151]. 

Dated ,  18—. 

A.  B. 

[Verification  as  in  form  No.  52.] 


Summary  Peoceedings  for  Real  Property.   1043 

No.  1167. 
Precept  upon  Preseutation  of  Petition. 

(Code  Civ.  Pro.,  t^  2238.) 

TTie  People  of  the  State  of  New  York,  Z'o  C.  D.,  etc.  {naming 
the  person  or  persons  designated  in  the  petition  as 
being  in  possession  of  the  premises'] : ' 

Whereas,  T.  W.  [or  C.  F.]  has  presented  to  me  [or  has  filed 
with  me]  liis  petition,  as  prescribed  in  title  second  of  chapter 
seventeenth  of  the  Code  of  Civil  Procedure,  in  writing,  and 
duly  verified,  alleging  that  [set  forth  the  facts  contained  in 
petition]. 

You  are,  therefore,  hereby  required  forthwith  to  remove 
from   the  property  [describing  it],   or  to  show  cause,   at 

,  on  the day  of ,  18 — ,  at 

o'clock  in  the noon,  why  possession  of  said  prop- 
erty should  not  be  delivered  to  said  [T.  W.  or  C.  F.].' 

Witness  my  hand  this  day  of ,  18 — , 

M.  N.  [ofRcial  title^]. 
[A  copy  of  section  2241  of  Code  Civil  Procedure  is  by  that 
section  required  to  be  indorsed  upon  each  copy  of  the  pre- 
cept served  otherwise  than  personally  u^jon  the  person  to 
whom  it  is  directed.] 

No.  1168. 
Affldavit  of  Service  of  Precept. 

(Code  Civ.  Pro.,  i^  2240.) 

County,  ss.  : 


A.  B.,  of ,  being  d.uly  sworn,  says,  that  on  the 


'  See   Croft  v.  King^  (8  Daly,  265),  able  before   the  court  at  the  place 

and  as  to  direction  in  cases  under  sec-  desig'nated,  pursuant  to  law,  for  hold- 

t ion  2237,  Code  Civ.  Pro.,  see  section  ing  thecoui-t.    (Code  Civ.  Pro.,  §  2239.) 

2242  (id.)  A   precept   to    dispossess   a   tenant 

'  Except  in  cases  specified  in  section  holding  over  after   the   expiration  of 

2237,  Code  Civ.  Pro.,  insert  here  name  hia  tei-m,  which  in  made  returiinlile  the 

of  i»etitir)ner  ;  in  cases  under  fhat  sec-  day  after  its  issue,  is  not  aiithoi-ized 

tioii  in.sei-t  name  of  owner  or  landlord,  by  the  stittute  and  confers  no  jui-isdic- 

(Code  Civ.  Pro.,  §  2238.)  tion.     (Luhrs   v.    Conimors,   13   Al)b. 

'  In  New  York  city,  where  the  ap-  N.  C,  88  ;  S.  C,  30  Hun,  4(;8  ) 

plication  is  made  to  a  district  coiut.  See,  also,  Neinetty  v.  Naylor  (100 

the  petition  mu.st  T»e  filed  with  and  the  N.  Y.,    r)t)2),    Sperling   v.  Isaa<-H  (13 

precept  must  be  issued  by  the  cleik  of  Daly,  27.'>),  Luhrs  v.  CoinmoHH(13  Abb. 

the  court,  and  must  l^e  matie  return-  N.  C.,  88),  as  to  precept. 


1()4-1  Forms  Relating  to 

day  of ,  18—,  at ,  in  the  city  [or 


town]  of ,  in  the  county  of ,  he  served  the 

annexed  precept  upon  C.  B.  [or  upon  the Company], 

to  whom  it  is  directed  [*J,  by  delivering  a  copy  thereof  to 

said  C.  P.  [or  to  M.  F.,  the  president,  etc.,  of  the  said 

Comiiany],  and  at  the  same  time  showing  him  the  said  crrigi- 
nal  precept. 

[Or  as  above  to  (*),  so  far  as  the  same  applies  to  service 
upon  a  natural  person,  and  from  thence  as  follows:  And 

who  resides  at ,  in  the  city  {or  town)  of ,  in 

Avhich  the  property  described  in  said  precept  is  situated, 
but  was  absent  from  his  dwelling-house  at  the  time  of  such 
service,  by  delivering  a  copy  thereof  with  a  copy  of  section 
2241  of  the  Code  of  Civil  Procedure  indorsed  thereuj^on'  (f), 
at  his  said  dwelling-house,  to  M.  F.,' a  person  of  suitable 
age  or  discretion  who  then  resided  there,  to  wit :  a  person 
of  the  age  of  at  least years.] 

[Or  as  above  to  (f),  and  from  thence  as  follows :  At  the 
property  therein  described  and  sought  to  be  recovered,  to 
M.  F.,'  a  i^erson  of  suitable  age  and  discretion  residing  {or 

employed)  there,  to  wit :  of  the  age  of  at  least years, 

there  being  no  person  of  suitable  age  and  discretion  who- 
could,  with  reasonable  diligence,  be  found  at  his  said  dwel- 
ling-house {or  add  in  case  of  service  upon  person  employed 
at  the  property,  as  follows :  or  residing  at  said  property) ; 
that  deponent  made  the  following  efforts  to  find  a  person 
at  said  C.  D.'s  dwelling-house  of  suitable  age  and  discre- 
tion upon  whom  such  service  could  be  made,  to  wit  (state 
efforts  and  inquiries  made).] 

[Or  under  subdivision  3  as  above  to  (*),  and  from  thence 
as  follows :  By  affixing  a  copy  of  the  said  precept  upon  a 
conspicuous  part  of  the  property  therein  described,  to  wit : 
on  (state  where  affixed),  deponent  being  unable  with  reasona- 
ble diligence,  to  wit  (state  efforts  made),  to  make  personal 
service  upon  said  C.  D.,  and  said  C.  D.  being  absent  from 


'  This  clause  is  necessary  In  all  cases  if  it  can  be  ascertained  with  reasonable 

where  service  is  not  personal.     (Code  diligence      (Code  Civ    Pro  ,  ^  2243.) 

Civ  Pro. ,  S  2241 . 1  If  the  name  cannot  be  ascertained  state 

»  The  name  of  the  person  to  whom  that  fact,  and  state  inquiries  made  to 

the  copy  was  delivered  must  be  stated,  ascertain  the  name. 


Summary  Proceedhstgs  for  Real  Property.   1045 

his  dwelling-lfonse  at  the  time  of  said  service  {or  his  dwell- 
ing-house not  being  situated  in  the  town  6^ in  which 

the  said  property  is  situated),  and  deponent  being  unable 
with  reasonable  diligence,  to  wit  (state  efibrts  made),  to  iind 
any  person  of  suitable  age  and  discretion  who  resided  at 
said  dwelling-house  upon  whom  to  make  such  service,  and 
deponent  being  unable  with  reasonable  diligence,  to  wit 
(state  efforts  made),  to  find  any  person  of  suitable  age  and 
discretion  upon  Avhom  to  make  such  service  residing  or 
employed  at  said  property.] 

[That  such  service  was  made  at o'clock  in  the 

noon  of  said day  of ,  18 — ,  and 

at  least  two  hours  before  the  hour  at  which  said  precept  is 
returnable.'] 

A.  B. 

[Jurat  as  in  form  No.  46.] 


No.  1169. 
Answer  to  Petition  upon  Return  of  the  Precept. 

(Code  Civ.  Pro.,  §  2244.) 

[Title  of  proceeding.] 
The  answer  of  C.  D.,  to  the  petition  of  A.  B.  in  the  above 


'  Add  this  last  clause  to  each  of  the 
above,  if  the  precept  is  returnalile  on 
the  day  it  is  issued.  (Code  Civ.  Pro., 
g  2240,  last  clause.) 

Where  there  are  two  or  more  de- 
fendants, who  are  absent  from  the 
premises,  leaving  one  copy  of  the  pro- 
cess with  the  person  in  charge  is  not 
sufficient;  and  where,  in  such  a  case, 
the  affidavit  of  service  stated  that  they 
were  served  by  "  leaving  a  copy,  etc. ;  " 
TieUl,  that  neither  defendant  was  suffi 
ciently  served,  and  that  there  was  a 
jurisdictional  defect  in  the  proceed- 
ings. (People  ex  rel.  Crawford  v.  De 
Camp,  12  Ilun,  378.) 

As  to  service  upon  a  corixiratioii 
under  tlic  former  statute,  see  Brown 
V.  The  Mayor  (G6  N.  Y.,  385). 


A  return  of  service  of  the  precept, 
regular  on  its  face,  is  conclusive  against 
collateral  attack,  and  the  judgment  sub- 
sequently rendered  in  the  matter  will 
protect  the  party  upon  whose  applica- 
tion the  proceedings  were  instituted. 
(Feickert  v.  Freisem,  1  City  Ct.,  369.) 

As  to  service  of  precept  where  the 
case  is  within  .section  2237  of  Code 
Civ.  Pro.,  see  section  2'-'42  (id.). 

See  further  as  to  proof  of  .service  of 
precept,  Code  Civ.  Pro.,  i^  2243. 

In  case  of  service  by  a  sherilT,  con- 
.stable  ormarshal,  it  may  be  proved  by 
his  certificate  stating  the  facts.  (Id.) 
The  above  forms  of  affidavit  may  bo 
easily  adapted  to  the  case  of  a  certifl- 
cate. 

See,  al.so,  Grafton  v.  Hrigliam  (70 
Hun,  141),  Pe(>i)le  ex  rel.  Alien  v  M>ir- 
ray  (2  Misc..  \T>2),  Jacobs  v.  Zeltner(9 
id.,  455),  Feickert  v.   Freisem  (1  City 


1046  Forms  Rp:LATiNrT  to 

entitled  matter,  respectfully  shows,  tliat  he  is  [state  facts 
authorizing  liiiu  to  answer]. 

And  the  said  C  1).,  further  answering  the  said  petition, 
denies  each  and  every  allegation  contained  in  said  petition 
[o?-  make  specific  denials  of  material  allegations].' 

Dated ,  18—. 

C.  D., 
[Office  address  or  place  of  business.'] 
[Verification  as  in  forms  Nos.  151,  etc.] 


No.  1170. 
Final  Order  upon  Return  of  the  Precept  or  upon  Trial. 

(Code  Civ.  Pro.,  §  2249.) 

[At,  etc.,  as  in  form  No.  80  (when  made  by  the  court).] 
[Title  of  proceeding.  ] 

Upon  the  return  of  the  precept  herein,  issued  upon  the 

petition  of  T.  W.  [or  of  C.  F.],  filed ,  18—,  by  which 

it  appears  that  [recite  contents  of  petition],  and  due  proof 
having  been  made  by  the  x)etitioner  of  the  service  thereof, 
and  ['^1  no  sufficient  cause  having  been  shown  why  the 
prayer  of  such  petitioner  should  not  be  granted  [o?-  C.  J). 
having  filed  an  answer  to  said  petition  (and  demanded  a 
jury  trial)  and  the  verdict  of  the  jury  (or  my  decision,  or 
the  decision  of  the  judge  or  justice)  upon  the  trial  hereof, 
being  in  favor  of  the  petitioner] : 

It  is  hereby  ordered  and  directed,  that  the  delivery  of  the 
possession  of  the  property  described  in  the  said  petition  be 
and  the  same  is  hereby  aAvarded  to  the  said  petitioner  [or 
that  the  occupant  {or  occupants)  be  removed  from  the  prop- 


Ct.,  369),  Rathburn  v.  Weber  (13  Civ.  id.,  149),  Matter  of  Wright  (42  State 

Pro.  R.,  50).  Rep.,  455),  Jennings  v.  McCarthy  (40 

'  See,  also,  form  No.  140  and  notes  id.,  179),    Barnum  v.  Fitzpatrick  (46 

thereto.  id.,  891),    People   ex  rel.    ^Baldwin  v. 

As  to  what  defenses  may  be  inter-  Goldfogle  (23  Civ.  Pro.  R.,  417),  Stover 

posed,  see   Crawford   v.   Kastner   (26  v.  Chasse  (9  Misc.,  45),  Burrell  v.  Do 

Hun,  440),  People  ex  rel.  Ainslee  v.  Sim  (10  id.,  745),  Pearson  v.  Germond 

Howlett  (76  N.  Y.,  574;  aff 'g  S.  C,  13  (83  Hun,  88). 

Hun,  138),  People  ex  rel.  Jacks  v.  Cal-  As   to  appointment  of  gnardian  ad 

lahan  (8  Week.  Dig.,  297).    In  case  of  litem   for   an   infant,  see  Jessurun  v. 

f  n-eiWe   entry  or  detainer,  see  Code  Mackie   (24   Hun,    624 ;    appeal    dia- 

Civ.  Pro.,  §  2245  ;  People  v.  Covill  (14  missed,  S.  C,  86  N.  Y.,  622).     As  to 

Week.  Dig.,  31).     See,   also,   amend-  adjournments,  see  section  2248    Code 

ment  to  section  2244  of  Code  Civ.  Pro.,  Civ.  Pro.,   and  People  ex  rel.  Allen  v. 

by  ch.  705  of  Laws  of  1893,  and  Rogers  Murray  (21  N.  Y.Supp.,  397;   afiF'g  S. 

V.  Earle  (5  Misc..  164),  Bloom  v.  Huyck  C,  23  Civ.  Pro.  R.,  53). 

(71  Hun,  252),  Dickinson  v.  Price  (64  '  See  note  2  to  form  No.  122. 


SUMMAKY   PrOCEEDIN^GS   FOR   ReAL   PROPERTY.    1047 

erty  described  in  said  petition]/  with dollars'  costs 

of  this  proceeding,  which  are  hereby  awarded  to  the  said 
petitioner.' 

[O?'  as  above  to  (*)  and  from  thence  as  follows  :  A  written 
answer  having  been  tiled  by  C.  D.,  the  j)erson  to  whom  said 
precept  was  directed  (or  otherwise  state  his  right  to  appear), 
and  the  issues  raised  thereby  having  been  tried  by  a  jury 
(or  by  naming  court  or  judge,  etc.),  and  the  verdict  of  the 
jury,  or  the  decision  of  said  judge  {or  justice),  having  been 
rendered  in  favor  of  the  said  C.  D.  :  It  is  hereby  ordered, 
etc.  (state  relief),  with dollars  costs'  of  this  proceed- 
ing, which  are  hereby  awarded  to  the  said  C.  D.'] 

Date  [of  judge's  order]. 

A,  O.,  Judge,  etc. 

{when  made  by  judge). 


No.  1171. 
Warrant  to  Dispossess  Tenant,  etc. 

(Code  Civ.  Pro.,  §  2251.) 

The  People  of  the  State  of  JSfeio  York,  to  the  Sheriff  of  the 

county  of ,  or  to  any  Constable  [or  Marshall 

of  the  city  of ,  or  to  any  Constable  of  the  town 

of ,  greeting : 

Whereas,  A.  B.,  on  the  day  of ,  18 — , 

presented  to  {or  tiled  with]  *  [me]  a  petition  as  prescribed 
in  title  second  of  chapter  seventeenth  of  the  Code  of  Civil 
Procedure,  stating  that  [recite  the  facts  stated  by  the  peti- 
tioner, including  the  description  of  the  property],  where- 
upon [I]  issued  a  precept  directed  to  [naming  jiersons],  the 

'Insert  this  clause  in  case  of  a  pro-  id.,  131),   Reich  v.  Cochrane    (74  id., 

ceedini,'-  under  section  2237,  Code  Civ.  551),  Wyckoff  v.  Frommer  (12  Misc., 

Pro.  (§  2249,  id.)-  149),    Harris   v.    Treu    (14   id.,    172), 

"iSee  as  to  amount  of  costs  and  their  Earle  v.  MrGoltlrick  (15  id.,  135). 

collection.  Code  Civ.  Pro.,  §  2250.  But   allhoufrh  it  is  conclusive  that 

^The   tinal  order,  though  taken  by  some  rent  is  due,  it  is   not  conclusive 

default,  is  conclusive  in  an  action  by  that  the  amount  due  is  correctly  stated 

the  landlord  to  recover  the  rent,  as  to  in  the  afiidavit  (petition).     (Jarvis  v. 

all   the  matters  of  fact  stated    in  the  Drif,'gs,  69  N.  Y.,  143.) 

affidavit  {petition)  which  are  required  See    also,    Terrett   v.    Cowenhoven 

to  he  so  stateil  by  the  statute,    (iii-own  (11  Hun,  320),  as  to  effect  of  the  order 

v.  The    Mayor,   GtJ    N.  Y.,    385.)     See  in  a  proceeding,'  taken  by  a  purchjiaer 

also,    Peer  v.   O'Leary  (S  Misc.,  350),  under  an  execution  sale. 

People   ex   rel.  White   v.  Loomis  (27  *  See  Code  Civ.  Pro.,  §§2238,2239. 
Hun,    328),    Grafton  v.    Brigham    (70 


1048  FoKMS  Relating  to 

person  [or  persons]  designated  in  the  said  petition  as  being 
in  the  possession  of  the  property  described  in  said  petition, 
and  requiring  him  [or  them]  forthwith  to  remove  from  the 
said  property,  or  to  show  cause  before  [me],  at  a  time  and 
phice  specilied  in  the  said  precept,  to  wit:  at,  etc.,  on,  etc., 
why  possession  of  the  said  property  should  not  be  delivered 
to  the  said  petitioner  [or  to  the  owner  {or  landlord)  of  said 
property]  ;  and, 

Whereas,  sufficient  cause  was  not  shown  upon  the  return 
of  the  said  precept,  with  proof  of  due  service  thereof  upon 
the  said  C.  D.  [or,  whereas,  the  said  C.  D.,  at  the  time  w^hen 
said  precept  was  returnable,  by  his  written  answer,  filed  with 
(me)  and  duly  verified,  denied  the  allegations,  or  some  of  the 
material  allegations,  of  the  said  i)etition  (and  demanded  a 
jury,  and  at  the  time  of  such  demand  paid  to  me  the  neces- 
sary costs  and  expenses  of  obtaining  such  jury);'  and, 
whereas,  the  verdict  of  the  said  jury  {or  my  decision)  upon 
the  trial  of  said  issues  was  in  favor  of  the  said  petitioner], 
and  [I]  thereupon  made  a  final  order,  as  required  by  said 
title,  awarding  to  the  said  petitioner  the  delivery  of  the  pos- 
session of  the  said  i)roperty  [or  directing  the  removal  of  the 
said  occupant] : 

Xow,  therefore,  you  are  hereby  commanded  to  remove  all 
persons  from  the  said  property  [and  to  put  the  said  peti- 
tioner in  possession  thereof].* 

Witness  my  hand  at ,  this day  of , 

18—. 

M.  N.  [official  title]. 


No.  1172. 
Return  of  Officer  to  Warrant. 

(Code  Civ.  Pro.,  §  2252.) 

In  pursuance  of  the  within  command,  I  have  this  day  re- 

'  See  Code  Civ.   Pre,  §§2244,2247.  As  to  execution  of  warrant,  see  Code 

^Thia   clause   in  brackets  is  to  be  Civ.   Pro.,   §2252;  as   to   effect  upon 

omitted,  In  cases  under  section  22S7  of  lease,  see  (id.)  §  2253. 

Code  Civ.  Pro.,  (§22f)],  id.).  See  also.  Ash   v.  Purriell    (26  Abb. 

The  warrant  protects  the  constable  N.  C,  92 ;  32   State  Rep.,  306).  as  to 

in  ejecting- persons  not   parties  to  the  issuing  of  warrant;  Duffus  v.  Bang^s 

special    proceeding,    but,    in   such    a  (43    Hun,    52,    aff'd    S.  C,  122  N.  Y., 

case,  the  complainant   is  liable  to  an  423),  Gregg  v.  Boyd  (69  Hun,  588),  aa 

action  by  a  jierson  not  a  party,  who  is  to  effect  of  warrant, 
ejected   by  virtue  thereof.     (Croft  v. 
King,  8  Daly,  265.) 


Summary  Proceedings  for  Real  Property.    104^ 

moved  all  persons  from  [and  put  the  within  named  T.  W. 
in  the  full  possession  of] '  the  premises  within  described. 

Dated ,  18—. 

M.  N.  [official  title]. 

No.  1173. 

Undertakiug  to  Effect  Stay,  under  SuMivisiou  1  of  Section 
2251,  Code  Civil  Procedure. 

(Code  Civ.  Pro.,  g  2254.) 

[Title  of  proceeding.] 

Whereas,  it  has  been  established  by  the  final  order  entered 

herein,  on  the day  of ,  18 — ,  that  C.  D.,  [f] 

a  lessee  [or  tenant]  of  the  premises  described  as  follows, 
to  wit  [describe  same],  [*]  holds  over  after  a  default  in  th& 
payment  of  rent,  pursuant  to  the  agreement  under  which  the 
said  demised  premises  are  held  or  after  a  default  in  the  pay- 
ment of  taxes  {or  assessments)  levied  on  the  said  demised 
premises  which  he  has  agreed  in  writing  to  pay] : 

Now,   therefore,  we,  E.  G.,  of ,  by  occupation  a 

[and  G.  H.,  of ,  by  occupation  a ], 

do  hereby  [jointly  and  severally]  undertake,  pursuant  to- 

statute,  to  and  with  A.  B..  in  the  sum  of dollars,* 

that  said  C.  D.  will  pay  to  said  A.  B.,  the  petitioner  in  said 
proceeding,  the  said  rent  [or  will  pay  the  said  taxes  (or 
assessments)]  within  ten  days  [and  the  interest  and  penalty 
thereupon],  and  the  costs  of  this  proceeding. 

Dated ,  18—. 

E.  F. 
[G.  H.] 

[Acknowledgment  as  in  form  No.  340,  or  proof  as  in  form 
No,  538;  affidavit  and  approval  as  in  form  No.  340.] 


No.  1174. 

Undertaking  to  Effect  Stay,  under  Subdivision  2  of  Section 
2254,  Code  Civil  Procedure. 

(Code  Civ.  Pro.,  ^  2204. ) 

As  in  form  No.  1173  to|*]i  J"id  fioni  lliciict'  ms  follows: 

'  See  note  2  to  form  No.  1171.  as  the  judpc  or  justiee  iimy  approve. 

■'  '•'  •  •.'.(■h  sum  and  wilL  burli  sureties     (Code  Civ.  Pro.,  ^  22.'»l.)    Tlicri'  need 


1050  Forms  Relating  to 

Has  taken  the  benefit  of  an  insolvent  act  [or  has  been  ad- 
judicated a  bankrupt],  during  the  term  of  his  lease  : 

Xow,  therefore,  [we]  E.  F.,  of ,  by  occupation  a 

,  and  G.  H.,  of ,  bj'^  occupation  a , 

do  lioreby  [jointly  and  severally]  undertake,  pursuant  to 
statute,  to  and  with  A.  B.,  the  petitioner  in  snid  proceeding, 

in  the  sum  of dollars,'  that  tlie  said  C.  D.  will  pay 

to  said  A.  B.  the  rent  of  the  said  premises,  as  it  has  become 
or  hereafter  becomes  due. 

Dated ,  18—. 

E.  F. 

[G.  H.] 
[Acknowledgment,  etc.,  as  in  form  No.  1173.] 


No.  1175. 

Undertaking  to  Effect  Stay,  under  Subdivision  3  of  Section 
2254,  Code  Civil  Procedure. 

(Code  Civ.  Pro.,  §  2254.) 

As  in  form  No.  1173  to  [f],  and  from  thence  as  follows : 
Continues  in  possession  of  the  following  described  real 
property,  to  wit  [describe  same],  which  has  been  sold  by 
virtue  of  an  execution  against  his  proj^erty  : 

Now,  therefore,  [we],  etc.  [as  in  form  No.  1173],  do  hereby 
"undertake,  pursuant  to  statute,  to  and  with  A.  B.,  the  peti- 
tioner in  said  proceeding,  that  said  C.  D.  will  pay  all  costs, 
and  damages  which  may  be  recovered  against  him,  in  an 
action  of  ejectment  to  recover  the  said  j)roperty,  brought 
against  him  by  said  A.  B.,  within  six  months  hereafter ;  and 
that  he  w-ill  not  commit  any  waste  upon  or  injury  to  the 
said  property  during  his  occupation  thereof.' 

Dated ,  18—. 

E.  F. 
[G.  H.] 

[Acknowledgment,  etc.,  as  in  form  No.  1173. J 

be  only  one  surety,  unless  two  are  ex-        ^  gee  note  2  to  form  No.  1173,  and  see, 

pressly  required.      (Code   Civ.    Pro.,  as  to  disposal  of  undertaking,   Code 

8  811.)  Civ.  Pro.,  §2255. 
'  See  note  2  to  form  No.  1173. 


Summary  Proceedings  for  Real  Property.    1051 

No.  1176. 

Affidavit  to  be  Made,  uuder  SuMiTision  3  of  Section  2254, 
Code  Civil  Procedure,  to  Obtain  Stay. 

(Code  Civ.  Pro.,  §  2254.) 

[Title  of  proceeding.] 
County,  ss.  : 

A.  B.,  of ,  being  duly  sworn,  says,  that  he  is  the 

defendant  above  named  and  claims  the  possession  of  the 
property  described  in  the  petition  in  the  above  matter,  by 
virtue  of  a  right  [or  title]  acquired  after  the  sale  of  said 
property  set  forth  in  the  said  petition,  to  wit  [set  forth 
same]  [or  as  guardian  or  trustee  for  I,  J.].' 

A.  B. 

[Jurat  as  in  form  No.  46.] 


No.  1177. 
Notice  by  Creditor  of  Lessee  of  His  Intention  to  Redeem. 

(Code  Civ.  Pro.,  §  2257.) 

[Title  of  proceeding.] 

Notice  is  hereby  given  that  I,  M.  C,  a  [*]  judgment 
creditor  of  C.  D.,  the  lessee  of  the  property  described 
as  follows,  to  wit  [describe  same],  whose  judgment  was 

docketed  in  the  county  of on  the day  of 

,  18 — ,  and  before  the  precept  herein  was  issued, 

which  judgment  was  rendered  in  the  [Supreme]  Court  in 

[mj^]  favor  against  said  C.  D.  for dollars,  and  upon 

which  judgment  is  now  due  to  me  the  sum  of dol- 
lars, with   interest   thereupon    from   the day  of 

,  18 — ,  [t]  intend  to  redeem  the  said  premises,  as 

prescribed  in  section  2257  of  the  Code  of  Civil  Procedure. 

M.  C. 

Dated ,  18—. 

[Or  as  above  to  (*),  and  from  thence  as  follows:  Mort- 
gagee of  the  lease  made  by to ,  dated,  etc., 

'  See  People  V  Palmer  (1<5  Iliin,  1.3(5),     Scliermerliorn  v.  Carter  (R  Week.  Di^., 

^83). 


1052  Forms  Relating  to 

of   the  premises  described   as  follows,   to  wit  (describing 
same),  by  a  mortgage  executed  by  (said)  C.  D.  to  me,  dated 

,  18—,  and  duly  recorded  in  the county 

clerk's   office  on    the da 3^  of ,  18 — ,  at 

o'clock  in  the noon,  and  before  the  pre- 
cept herein  was  issued,  upon  which  mortgage  is  due  to  me 

the  sum  of dollars,  with  interest  thereupon  from 

the day  of ,  J 8— .J 

[Conclude  as  in  above  form  from  (f)]. 


No.  1178. 
Petition  of  Person  Redeeming  Premises. 

(Code  Civ.  Pro.,  §  2259.) 

[Title  of  proceeding.] 
To  [naming  judge  or  justice,  etc.]: 

The  petition  of  C.  D.,  of ,  respectfully  shows'. 

That  he  is  the  defendant  in  the  above  entitled  jjroceeding 
[07'  a  judgment  creditor  of  C.  D,,  whose  judgment  was  dock- 
eted in count}"  on  the day  of , 

18 — ,  and  before  the  precept  in  the  above  entitled  proceed- 
ing w^as  issued  ;  07'  a  mortgagee  of  the  lease  (describing  it) 
of  the  projDerty  (describing  same)  by  a  mortgage  (describing 
it,  stating  parties,  date  and  time  and  place  of  record)]. 

That  the  above  entitled  proceeding  was  founded  upon  an 
allegation  that  the  said  C.  D.  held  over,  after  default,  in  the 
13ayment  of  the  rent,  under  said  lease  [or  describe  lease], 
and  that  the  unexpired  term  of  the  said  lease  was  more 
than  five  years  at  the  time  when  the  Avarrant  in  said  pro- 
ceeding was  issued. 

[That  a  notice  of  your  petitioner's  intention  to  redeem 
the  said  j)remises,  as  provided  by  section  2257  of  the  Code 
of  Civil  Procedure,  was  duly  filed  with  (naming  judge  or 
justice),  who  issued  the  said  w^arrant  {or  Avho  succeeded  in 
office  the  judge,  or  justice,  who  issued  the  said  warrant) 
on  the day  of ,  18 — ,  and  before  the  expi- 
ration of  one  year  after  the  execution  of  said  warrant  as 
hereinafter  mentioned]. 

That  a  warrant  was  duly  issued  in  said  jDroceeding  by 


Summary  Proceedings  for  Real  Property.   1053 
Hon.  A.  M.,  judge,  etc.,  on  the clay  of , 


18 — ,  directed  to ,  and  describing  said  property,  and 

commanding  [state  command  of  warrant],  and  said  warrant 

was  executed  by  said on  the day  of , 

18 — ,  pursuant  to  the  command  thereof,  as  will  appear  from 
his  return  thereto  on  file  in  the clerk's  office. 

And  your  petitioner  further  says,  that  on  the 

day  of ,  18 — ,  and  within  one  year  after  the  execu- 
tion of  said  warrant  as  aforesaid,  he  paid  \or  tendered]  all 
rent  in  arrears  under  said  lease  at  the  time  of  the  said  pay- 
ment [or  tender],  with  interest  thereupon,  and  the  costs  and 
charges  incurred  by  the  said  petitioner,  to  wit :  the  sum  of 

dollars  to  the  said  A.  B.,  the  petitioner  in  said 

proceeding  [or  to  the  said  A.  M.,  the  judge  [or  justice)  who 
issued  the  said  warrant  {or  to  B.  F.,  the  successor  in  office  of 
the  said  A.  M.,  the  judge,  etc.),  your  petitioner  not  being  able 
to  find  A.  B.,  the  petitioner  in  said  proceeding,  within  five 
days  before  the  expiration  of  a  year  after  the  execution  of 

said  warrant,  within  the  city  {or  town)  of ,  wherein 

(a  portion  of)  the  said  property  is  situated,  with  reasonable 
diligence,  to  wit  (state  efforts  made  to  find  the  petitioner)]. 

[That  no  redemption  was  made  by  the  said  lessee  within 
a  year  after  the  execution  of  said  warrant,] 

Wherefore  your  petitioner  prays  that  an  order  nuiy  be 
made  by  your  honor,  establishing  the  rights  and  liabilities 
of  the  parties  upon  the  said  redemption,  and  for  such  other 
and  further  relief  as  may  be  proper.' 

Dated ,  18—. 

CD. 

[Verification  as  in  form  No.  52.] 


No.  1179. 
Order  to  Show  Cause  upon  Petition  (No.  1178). 

(Code  Civ.  Pro.,  ^2259.) 

[Title  of  proceeding.  ] 

Upon  the  annexed  petition  of  C.  D.,  dated ,  18 — , 

'  This  petition  may  be  easily  adapted    notices  under  section   2257  of  Code 
to  a  case  wliere  two  or  more  morl^a-    Civ.  Pro. 
gees,  or  judgment  creditors,  have  filed 


1054  Forms  RelatinOt  to 

let  A.  B.,  above  named,  show  cause  before  me,  at -, 

on  the day  of ,  18—,  at  o'clock 

in  the noon,  why  the  prayer  of  said  petitioner 

should  not  be  granted. 

And  it  is  further  ordered,  that  copies  of  this  order,  and  of 
said  petition,  be  served  upon  said  A.  B.,  on  or  before  the 
day  of ,  18—.' 


Dated ,  18 — . 


A.  0.,  Judge,  etc. 


No.  1180. 

Final  Order  upon  the  Return  of  Order  to  Show  Cause  (No. 

1179). 

(Code  Civ.  Pro.,  §  2259.) 

[Title  of  proceeding.] 

Upon  the  return  of  the  order  to  show  cause,  granted 

herein  by  me,  on  the day  of ,  18 — ,  with 

proof  of  due  service  thereof,  as  required  thereby,  and  the 
court  having  heard  the  allegations  and  proof  of  the  parties, 
and  after  hearing,  etc.  : 

It  is  hereby  ordered,  that,  etc.  [state  the  relief  granted].' 

A.  O.,  Judge,  etc. 

No.  1181. 

Notice  of  Appeal  from  Final  Order,  under  Title  2  of  Chap- 
ter 17  of  Code  Civil  Procedure. 

(Code  Civ.  Pro.,  §  2260.) 

For  this  notice  on  appeal  from  final  order  of  justice  of  the 
peace,  see  §  3046,  C.  C  P.,  and  for  general  form  of  notice  of 
appeal,  see  forms  Nos.  511,  512,  513,  which  may  be  adapted 
to  this  notice.  But  see  provisions  of  sections  2261,  2262  of 
Code  Civil  Procedure  as  to  effect  of  such  an  appeal.^  Those 
sections  were  each  of  them  amended  by  ch.  946  cf  Laws  of 
1895,  taking  effect  Jan.  1,  1896,  having  been  previously 
amended  by  ch.  705  of  Laws  of  1893. 

■  As  to  order.s  to  show  cause,  see  a  deed.  (Code  Civ.  Pro.,  §  2259  ;  and 
note  1  to  form  No.  1 62,  and  rule  37  of  see  the  further  provisions  of  that  sec- 
Gen.  Rules  of  Practice.  tion  ) 

^  The  court  is  required  to  grant  ^  Where  a  notice  of  appeal  in  sum- 
such  relief  as  justice  requires.  The  mary  proceedings  to  remove  a  tenant 
order,  or  a  certified  copy  thereof,  from  possession  demanded  a  new  trial 
may  be  recorded  in   like   manner  as  in  the  county  court, — held,  that  such 


Summary  Proceedhstgs  foe  Real  Property.   1055 

No.  1182. 

Undertakiug  on  Appeal  from  Final  Order  under  Section 
2262,  Code  Ciyil  Procedure. 

(Code  Civ.  Pro..  §2262.) 

As  in  form  No.  5i7,  making  necessary  changes  to  words 
"now,  therefore,  etc.,"  and  from  thence  as  follows: 

Now,  therefore  [we],  E.  F.,  oi  ■ ,  by  occupation  a 

[and  G.  H.,  of ,  by  occupation  a ],* 

do  hereby  [jointly  and  severally]  undertake,  pursuant  to 
statute,  to  and  with  the  said  A.  B.,  that  if  [the  said  appeal 
is  dismissed,  or  if  judgment  is  rendered  against  the  appel- 
lant in  the  said  appellate  court,  and  an  execution  issued 
thereupon  is  returned  wholly  or  j^artly  unsatisfied,  they 
will  j)ay  the  amount  of  the  said  judgment,  or  the  portion 
thereof  remaining  unsatisfied,  not  exceeding  the  sum  of 

dollars]'  [and,  further,  that  if],  upon  the  appeal,  a 

final  determination  is  rendered  against  the  said  appellant, 
he  will  j)ay  all  rent  accruing,  or  to  accrue,  ujdou  the  said 
premises  [or  the  value  of  the  use  and  occupation  of  the 
said  premises],'  subsequent  to  the  institution  of  the  said 
special  proceeding. 

Dated ,  18—. 

E.  F. 
[G.  H.] 

[Acknowledgment  or  proof,  justification  and  approval  as 
in  forms  Nos.  340,  538. J 

new  trial  was  not  authorized  by  the  '  One  or  more  sureties,  see  section 

Code  of  Civil  Procedure.     (Brown  v.  811,  Code  Civ.  Pro. 

Cassady,  20  Week.  Dig^.,  66s  34  Hun,  'This  clause  is  from  section  3050  of 

55.)              .  Code  Civ.  Pro.,   and  is  to  stay   pro- 

Where  such  proceedings  are  regu-  ceedings  upon  an  appeal  from  the  tinal 

larly  prosecuted,  the   remedy  of  the  order  of  a  justice  of  the  peace  to  the 

defeated  party  is  by  appeal  from  the  county  court.     If  the  appeal  is  from 

final    dt'lei'iiiiuation,    and   not   V)y   an  the    final   order   of  another   court  or 

action    to    restrain    its    enforcement,  judge,  the  first  clause  of  the  under- 

(Sheehy  V.  Ke;lly,  20  Week.  Dig.,  78.)  taking  must  be  that  required  on  apjieal 

See,  also.  People  v.  Perry  (16  Hun,  to  such  court  to  perlei;t  the  jqpcal, 
461),  decided  under  former  statute,  and  to  stay  the  execution  of  the  or- 
and  Jessurun  V.  Mackie  (24  Hun,  624;  der  appealed  from.  (Code  Civ.  Pro., 
appeal  dismissed,  S.  C,  86  N.  ¥.,  622),  §§  2260,  2262  ;  for  forms,  see  Nos.  538, 
Warner  v.  Henderson  (2')  Hiin,  303),  547.)  See,  also,  amendments  by  ch. 
Shaw  V.  McCarty  (2Civ.  Pro.  R.,23o),  705  of  Laws  of  1893,  to  sections 
VanSchaickv.KoPter(2Civ.Pro..239),  2261  and  2262  of  Code  of  Civil  Pro- 
Shaw  v.  McCarty  (11  Daly,  !.')()),  Peoj)le  cediiif'. 

ex    rel.    Duraiit    Land    Imp.    Co.    v.  "  Insert  this  clause  where  there  is  no 

Jeroloman    (69  Iliin,   301),    Jacobs  v.  lease.     (Code  Civ.  Pro.,  §  2262.) 

Zeltner  (9  Misc.,  455),  Harris  v.  Treu  The  pi-oceedings,  to  obtain  order  for 
(14  id.,  172). 


1056  Forms  Relating  to 

No.  1183. 
Order  of  Reversal  of  Final  Order. 

(Code  Civ.  Pro.,  §  2263.) 

[At,  etc.,  as  in  form  No.  80.  j 
[Title  of  proceeding.] 

The  appeal  taken  by  C.  D.  from  the  final  order  of  . 
ill  the  above  entitled  proceeding,  dated .  18 — ,  hav- 
ing been  heard  at  a Term  of  the Court, 

held  at,  etc. : 

Now,  on  motion  of  E.  F.,  attorney  for  the  respondent, 
after  hearing  M.  C.  for  the  appellant : 

It  is  hereby  ordered,  that  the  said  final  order  appealed 
from,  be  and  the  same  is  hereby  reversed,  with dol- 
lars costs  and  disbursements  of  the  said  appeal,  to  be  paid 
by  the  said  A.  B.  to  the  said  C.  D. 

[Insert  provisions  for  restitution.'] 


No.  1184. 

Complaint  in  Action  for  Recovery  of  Damages  SnstaineO 
by  Dispossession,  where  Final  Order  is  Reversed  on 
Appeal. 

(Code  Civ.  Pro..  §2263.) 

[Title  of  cause.] 

The  complaint  of  the  above  named  plaintiff  respectfully 

shows,  that  heretofore,  and  on  the day  of ^ 

18 — ,  a  special  proceeding  was  brought  by  A.  B.,  before, 
etc.,  under  title  second  of  chapter  seventeenth  of  the  Code 
of  Civil  Procedure,  to  remove  the  plaintiff,  C.  D.,  as  hia 
tenant  [etc.],  from  the  possession  of  the  premises  situated 
in  the of ,  in  the  county  of ,  de- 
scribed as  follows,  to  wit  [describe  same],  and  that  such 

proceedings  were  had  therein  that  on  the  ■ day  of 

,  18 — ,  a  final  order  was  made  by  said  , 

directing  the  removal  of  said  plaintiff  from  said  premises 


stay    and    the    order,    will    be    like  Rep.),  Woods  v.  Keraan  (19  Civ.  Pro. 

those  contained  in  forms  Nob.  548, 649,  R.,  180). 

550.  For  orders  dismissing  appeal  from 

'  Sep  notes  to  forms  Nos.   532   and  orders,    and   affirming-   or    modifying 

533.     Marsh   v.    Masterson   (22  State  same,  see  forms  Nos.  529,  530. 


Contempts  other  than  Criminal.  1057 

with dollars  costs  of  said  proceedings,  wliicli  were 

thereby  awarded  to  said  A.  B. 

That  a  warrant  was  issued  accordingly,  under  the  hand 

of  said ,  directed  to  [the  sheriff  of county], 

describing  said  j^roperty,  and  commanding  said  [sheriff]  to 
remove  all  persons  therefrom,  and  to  j)ut  the  said  A.  B.  in 
possession  thereof. 

That,  under  said  warrant,  the  said  plaintiff  was  removed 
by  said  sheriff  from  said  premises,  he  being  then  in  posses- 
sion thereof  [under  a  lease  thereof,  etc.]. 

That  an  appeal  was  taken  by  the  plaintiff  to  the  [county 

court  of county],  and  said  final  order  was  reversed 

by  said court,  and  a  judgment  of  reversal  of  said 

final  order  and  for  dollars,  costs  of  said  appeal, 

was  duly  entered  in  the ,  on  the day  of 

,  18-. 

And  plaintiff  further  says,  that  by  the  said  dispossession 
he  was  [state  special  damages],  and  has  suffered  other  great 
injury  and  inconvenience  [and  that  said  costs  were  collected 
from  him  by  virtue  of  an  execution  issued  upon  said  final 
order],'  and  he  claims  damage  for  such  disj^ossession  in  the 

sum  of  dollars,  for  which  amount  [and  for  said 

costs  so  collected,  as  aforesaid],  and  for  costs  of  this  action, 
be  prays  judgment  against  the  defendant. 

A.  W.,  Plaintiff's  Attorney, 
[Office  address.'] 


TITLE  III. 

FORMS  RELATING  TO  PROCEEDINGS  TO  PUNISH  A  CONTEMPT 
OF  COURT  OTHER  THAN  A  CRIMINAL  CONTEMPT. 

(Code  Civ.  Pro..  Cb.  17,  Tit.  3.) 

No.  1185.     Affidavit  on  which  to  procure  warrant,  or  order  to  show  cause  in 
contempt  proceedings. 

1186.  Order  for  warrant  for  contempt  of  court  issued  witliout  notice. 

1187.  "Warrant  to  commit  for  contempt  of  court  issued  without  notice. 

1188.  Order  to  show  cause  why  the  accused  should  not  be  punislied  ft>r 

the  aHeged  offense. 

'It  may  be  doubtful  whether  these  (See   Code   Civ.    Pro.,  §   2263.)     See, 

costs  can  be  recovered  in  this  action,  also,  as   to   recovery,  Glawer  v.  Cum- 

which  is  brought  to  i-ecover  the  dam-  isky  (40  Stat«  Rep.,  872). 

ages   sustained  by  the  dispossession.  'See  note  U  to  form  No.  122. 

V6'6 


I0o8  Forms  Relating  to 

No.  1189.  Order  directing  warrant  of  attacliment  to  issue  for  contempt  of 
court. 

1190.  Warrant  t)f  attachment  in  proceedings  for  contempt  of  court. 

1191.  Notice  to  sherilf,  etc.,  to  return  execution  or  show  cause,  etc. 

1192.  Proof  of  service  of  notice  to  return  execution. 

1193.  Affidavit  of  delivery  of  execution  to  sheriff. 

1194.  Clerli's  certificate  of  search  for  execution  and  not  finding  same. 

1195.  Affidavit  of  search  for  mandate. 

1196.  Order  upon  decision  of  motion  to  compel  return  of  mandate  by 

sheriff. 

1197.  Undertaking  to  procure  discharge. 

1198.  Affidavit  in  proceedings  for  contempt  where  the  accused  is  in  the 

custody  of  sheriff,  etc. 

1199.  Writ  of  halteas  corpus  in  contempt  proceedings. 

1200.  Return  to  writ  of  habeas  corpus  in  contempt  proceedings. 

1201.  Return  to  warrant  of  attachment  in  contempt  proceedings. 

1202.  Order  directing  interrogatories  to  be  filed. 

1203.  Interrogatories  to  accused  in  contempt  proceedings. 

1204.  Answer  of  accused  to  interrogatories. 

1205.  Order  convicting  defendant  of  the  contempt  charged  and  directing 

his  punishment. 

1206.  Warrant  of  commitment,  pursuant  to  order. 

1207.  Affidavit  to  obtain  release  of  offender. 

1208.  Notice  of  application  for  discharge  of  offender. 

1209.  Order  discharging  offender  from  imprisonment. 

1210.  Order  when  accused  does  not  appear. 

1211.  Complaint  on  undertaking  given  for  appearance  of  offender. 


No.  1185. 

Affidavit  on  which  to  Procure  Warrant,  or  Order  to  Show 
Cause  in  Contempt  Proceedings. 

(Code  Civ.  Pro.,  g§  2268,  2269.) 

[Title  of  cause.] 
County,  ss.: 

A.  B.,  of ,  being  duly  sworn,  says,  that  [set  forth 

the  facts  showing  the  commission  of  the  offense,  and  where 
the  offense  consists  of  a  neglect  or  refusal  to  obey  an  order 
[etc.]  of  the  court  requiring  the  payment  of  costs,  or  of  a 
specified  sum  of  money,  show  that  a  personal  demand 
thereof  has  been  made  by  the  person  entitled  thereto,  or  by 
his  duly  authorized  attorney,  whose  power  of  attorney  was 
exhibited  and  the  nature  of  his  authority  stated  at  the  time 
the  demand  was  made,  and  that  at  the  time  of  such  demand 
a  copy  of  the  order  [etc.],  duly  certified  by  the  clerk  of  the 


Contempts  other  thax  Ckiminal. 


1059 


■court,  in  whose  office  tlie  order  [etc.]  has  been  entered,  has 

been  served  upon  the  accused].' 

That,  etc.  [as  in  form  No.  209,  substantially,  from  (f)]. 

A.  B. 
[Jurat  as  in  form  No.  46.] 


No.  1186. 

Order  for  Warrant  to  Coniniit  for  Contempt  of  Court  Issued 
without  Notice. 

(Code  Civ.  Pro.,  §  2268.) 

[At,  etc.,  as  in  form  No.  80.] 
[Title  of  cause.] 

Whereas,  an  order  [or  judgment]  was  heretofore  made 

[or  rendered]  by  this  court,  on  the day  of , 

18 — ,   in  the  above  entitled  action,   by  which  C.   D.  was 

[among  other  things]  required  to  pay  the  sum  of 

dollars,  etc.  [stating  substance  of  the  order,  etc.],  and  the 
court  being  satisfied  by  proof  by  the  affidavit  of  A.  B., 

dated ,  18 — ,  that  a  certified  copy  of  said  order  [or 

judgment]  has  been  served  upon  said  C.  D.,  and  that  a  per- 


*As  to  the  cases  to  which  proceed- 
ings under  this  title  apply,  see  section 
2266  of  Code  Civ.  Pro.,  and  section  14 
(id.),  therein  referred  to;  and  see 
Clark  V.  Bininger  (75  N.  Y.,  344  ;  aff'g 
S.  C,  43  N.  Y.  Super.  Ct.,  126,  344), 
In  re  H.  (87  N.  Y.,  521).  O'Gara  v. 
Kearney  (77  N.  Y.,  423),  People  v.  R. 
and  S.  L.  R.  R.  Co.  (76  N.  Y.,  294  ; 
afrgl4  Hiin,  371),  Fischer  v.  Raab 
(81  N.  Y.,  23.5  ;  rev'g  S.  C,  58  How. 
Pr.,  221),  McComlj  v.  Weaver  (11  Hun, 
271).  Park  v.  Park  (80  N.  Y..  156), 
People  V.  Riley  (25  Hun,  587),  People 
v.  Reillv  (56  How.  Pr.,  223),  Rycknian 
v.  Ryckman  (19  Week.  Dig.,  41  ;  S. 
C,  32  Hun,  l'.t3),  Gaidner  v.  Gardner 
(87  N.  Y.,  14;  rev'g  S.  C,  24  Hun, 
627),  Whitman  v.  Haines  (21  State 
Rep.,  41),  becond  Nat.  Bank  of  Os- 
wego v.  Dunn  (2  Civ.  Pro.  R.,  259), 
Steele  v.  Gunn  (19  State  Rep.,  654), 
Egan  v.  Lynch  (49  Sui)er.  Ct.,  454), 
Nathans  v.  Hope  (5  Civ.  Pro.  R.,  401, 
revM  100  N.  Y.,  615),  Norwood  v.  Ray 
Manfg  Co.  (11  Civ.  Pro.  R.,  273), 
Moffatt  V.  Herman  (17  Abh.  N.  C. 
107),  People   ex    rel.  Slaight  v.  Potter 


(estate  Rep.,  753),  People  ex  rel. 
Duffus  V.  Brown  (46  Hun,  320),  Rey- 
nolds V.  Parkes  (2  Dem.,  399),  Mat- 
ter of  Odell  (6  Dem.,  344),  McCaulay 
V.  Palmer  (40  Hun,  38),  Hart  v.  John- 
son (43  Hun,  505),  Beard  v.  Snook  (47 
Hun,  158),  Matter  of  Hess  (48  id.,  586), 
Forstman  v.  Schulting  (42  id.,  643), 
People  ex  rel.  Roosevelt  v.  Edson  (51 
Super.  Ct.,  238),  Prince  Mfg.  Co.  v. 
Prince  Metallic  Paint  Co.  (51  Hun, 
443),  Rochester,  etc.,  R.  Co.  v.  N.  Y., 
Lake  Erie,  etc.,  R.  Co.  (48  id.,  190), 
Myers  v.  Becker  (95  N.  Y.,  486,  aff'g 
S.  C,  29  Hun,  567),  Sandford  v.  Sand- 
ford  (44  Hun,  563),  Isaacs  v.  Isaacs 
(10  Duly,  306),  Ryckman  v.  Ryckman 
(34  Hun,  23.5,  afi"'d  without  op.,  98  N. 
Y.,  639),  Winton  v.  "Winton  (53  Hun, 
4),  Jac(piin  v.  Jacquin  (36  Hun,  378), 
Cockefair  v.  Cockefair  (23  Abb.  N.  C, 
219),  King-v.  Barnes  (113  N.  Y.,  476), 
Moflat  V.  Herman  (116  N.  Y.,  131), 
Ross  V.  Butl.'r(57  Him,  110),  Al.lin- 
ger  V.  Pugh  (id.,  181),  Pt^oplti  ex  rel. 
Steitz  V.  Ri(«  (id.,  62),  Branth  v. 
Branth  (.36  Stale  Rep..  628).  Whitney 
V.  Whitnt-y    (33   id.,  704),   Rhodes    v. 


Contempts  other  than  Criminal. 


1059a 


Linderman  (43  id.,  520),  Lawrence  v. 
Harrington  (63  Hun,  195),  Cancim- 
mino's  Towing,  etc.,  Co.  v.  Cancim- 
mino  (43  State  Rep.,  49),  Boon  v.  Mc- 
Gucken(67  Hun,  251),  Cunningham  v. 
Hatch  (3  Misc.,  101),  Pittsfield  Nat. 
Bank  V.  Tailer  (50  State  Rep.,  415). 
Matter  of  Board  of  HeaUh  of  Yonkers 
(69  Hun,  110),  Greite  v.  Henricks  (71 
Hun,  11),  Betz  v.  Buckel  (30  Abb.  N. 
C,  27S),  Cauda  v.  Gollner  (73  Hun, 
493),  Dawson  v.  Parsons  (74  id.,  221), 
De  Lancey  v.  Piepgras(73  Hun,  610), 
Holly  Mfg.  Co.  V.  Venner  (74  id.,  458), 
Martin  Cantine  Co.  v.  Warshaeur  (7 
Misc.,  412),  Matter  of  Hopper  (9  id., 
171),  Matter  of  Wilkes  (62  State  Rep., 
224),  People  ex  rel.  Gaynor  v.  McKane 
(78  Hun,  154),  People  v.  Bouchard  (6 
Misc.,  459),  Vermont  Marble  Works  v. 
Wilkes  (62  State  Rep.,  121),  Barnard 
V.  Grantz  (79  Hun,  413),  Mercer  v. 
Mercer  (73  id.,  192),  People  ex  rel. 
Piatt  V.  State  Board  of  Canvassers  (74 
id.,  179),  People  ex  rel.  Taylor  v. 
Lehman  (8  Misc.,  152),  Matter  of 
Taylor  (id.,  159),  People  ex  rel.  Tay- 
lor'v.  Forbes  (143  N.  Y.,  219),  Gerton 
Carriage  Co.  v.  Richardson  (6  Misc., 
466),  Walford  v.  Harris  (78  Hun,  346), 
Fii-st  Nat.  Bank  of  Plattsburgh  v. 
Fitzpatrick  (80  Hun,  75),  Matter  of 
Hall  (85  id.,  620).  McAveney  v.  Brush 
(13  Misc.,  79),  Kendrick  v.  Wandall 
(88  Hun,  518),  Taber  v.  N.  Y.  Ele- 
vated R  Co.  (12  Misc.,  460),  Davis  v. 
Davis  (83  Hun,  500),  People  ex  rel. 
Piatt  V.  Rice  (144  N.  Y.,  249.  aff'g  S. 
C,  80  Hun,  437),  Spiehler  v.  Asiel  (83 
Hun,  223),  Merritt  v.  Sparling  (88  id., 


491),  Matter  of  Gaines  (83  id.,  225), 
Kittel  V.  Stueve  (11  Misc.,  279),  Peo- 
ple V.  Lewis  (14  id.,  264).  Fromme  v. 
Gray  (14  Misc.,  592),  Matter  of  Gains 
(15  id.,  75),  Hills  v.  Peekskill  Savings 
Bank  (30  Hun,  546),  People  ex  rel. 
Pond  V.  Tamsen  (15  Misc.,  364).  Mat- 
ter of  Arkenburgh  (id.,  416),  Wolfe  v. 
knight  (15  Misc.,  43^}, 

As  to  jiower  of  a  referee  to  punish 
for  contempt,  see  Code  Civ.  Pro., 
§  2272,  Naylor  v.  Naylor  (32  Hun, 
228),  People  ex  rel.  Baldwin  v.  Miller 
(9  Misc.,  1). 

As  to  the  distinction  between  a 
criminal  and  civil  contempt,  see  Peo- 
ple ex  rel.  Kelly  v.  Aitken  (19  Hun, 
327). 

For  mandate  of  commitment  for 
criminal  contempt  under  section  11, 
Code  Civ.  Pi-o.,  see  form  No.  1,  and 
see  notes  to  that  form,  and  see  People 
ex  rel.  Jones  v.  Davidson  (35  Hun, 
471). 

A  defendant  who  has  been  impris- 
oned under  an  oider  adjudging  him 
guilty  of  contempt,  and  who  has  been 
discharged  upon  habeas  corpus  on  the 
ground  that  the  punishment  intlicted 
is  unauthorized,  cannot  be  agtiin 
brought  up,  retried  and  resentenced 
for  the  same  contempt.  (Snyder  v. 
Van  Ingen,  9  Hun,  569.) 

An  affidavit  on  information  and  be- 
lief was  held  sufficient  to  sustain  an 
order  to  show  cause  for  the  purpose 
of  these  proceedings,  and  put  defend- 
ant to  a  denial.  (Rahl  v.  Rahl,  14 
Week.  Dig.,  560.) 

See,  also,  notes  to  form  No.  1186. 


1060  Forms  E,elating  to 

sonal  demand  of  said  sum  has  been  made  upon  said  C.  D.,' 
by,  etc.,  and  that  payment  thereof  has  been  refused  \or 
neglected]  by  said  CD.:  ["^J 

Now,  therefore,  it  is  hereby  ordered,  on  motion  of , 

that  the  said  C.  D.,  by  reason  of  the  premises  aforesaid,  is 
guilty  of  a  contempt  of  court. 

And  it  is  further  ordered,  that  the  said  C.  D.,  for  the  con- 
tempt aforesaid,  of  which  he  is  guilty,  be  imprisoned  by  the 

sheriff  of  the  county  of ,  in  the  jail  of  said  county, 

until  the  said  sum  of  money  and  the  costs  and  expenses  of 
this  proceeding  to  compel  such  jjayment,  to  wit :  the  sum  of 

• dollars,  together  with  the  sheriff's  fees  on  the  warrant 

hereinafter  mentioned,  are  paid,  or  until  he  is  discharged  ac- 
cording to  law,  and  that  a  warrant  issue  committing  the  said 
C.  D.  accordingly. 

No.  1187. 

Warrant  to  Commit  for  Contempt  of  Court  Issued  without 

Notice. 

(Code  Civ.  Pro.,  §  2268.) 

[Title  of  cause.] 

To  tJie  Sheriff  of  the  County  of .• 

Whereas,  etc.,  as  in  form  No.  1186  to  ['^],  and  from  thence 
as  follows  :  And  an  order  having  been  thereupon  duly  made 

'Under  the   authority   of  Park   v.  Civ.  Pro.,  §  1769),  and  such  being  the 

Park  (80  N.  Y.,  156),  held,  that  the  de-  case,  an  attachment  may  be  issued  for 

fendant  in  a  suit  for  divorce  would  be  non-payment  of  alimony  under  section 

liable  to  punishment  for  contempt  for  1241,  Code  Civ.  Pro.  (id.), 

refusal  to  comply  with  the  directions  See,    however,    Rahl    v.    Rahl   (14 

contained  in  the  judgment   for  pay-  Week.  Dig.,  560),  Isaacs  v.  Isaacs  (10 

ment  of  alimony,  but  that  to  subject  Daly,  306;  S.  C,  61    How.  Pr.,  369), 

him  to  such   punishment,  under   sec-  Mahon   v.  Mahon  (50   Super.  Ct.,  92  ; 

lions  1246  and  2268  of  Code  Civ.  Pro.,  S.  C,  5   Civ.    Pro.    R.  [Browne],  58), 

a  certified  copy  of  the  judgment  must  Gane  v.  Gane  (45   Super.  Ct.,  355  ;  S. 

have  been  served  upon  him  and  a  de-  C,  46   id.,  218),  Baker  v.  Baker   (23 

mand  for  the  money  made  upon  him.  Hun,  360),  which  last   two   cases   are 

(Ryckman  V.  Ryckman,  igWeek.  Dig.,  distinguished   in   34   Hun,  238,  above 

41  ;  S.  C,  32   Hun,  193 ;  34   id.,  238 ;  cited. 

afiTd  without  opinion,  98   N.  Y.,  639.)  The  defendant  cannot   relieve  him- 

8ee,  also,   Hubbard   v.  Hubbard   (N.  self  from  his  obligation  to  comply  with 

Y.  Daily   Reg.,  Feb.    15,  1884),  Sand-  the   direction   contained  in  the  judg- 

ford    V.    Sandford    (40   Hun,   540 ;   44  ment   by  showing,  on  an    application 

Hun,   563),   Whitney   v.  Whitney   (33  for  an  attachment,  his  inability  to  pay. 

State  Rep.,  704).  He  must  apply,  under  section  2286  of 

lo  such  an  action,  execution  can  Code  Civ.  Pro.,  for  relief  on  that 
properly  issue   only  for  costs   (Code 


Contempts  other  than  Criminal.  1061 

by  tliis  court  on  the day  of ,  18 — ,  adjudging 

the  said  C.  D.  guilty  of  a  contempt  of  court  by  reason  of  the 
premises  aforesaid,  and  directing  that  the  said  C.  D.  for  the 
contempt  aforesaid,  of  whicli  he  is  guilty,  be  imprisoned  by 

the  sherift*  of  the  county  of  • ,  in  the  jail  of  said 

county,  until  the  said  sum  of  money,  to  wit :  the  sum  of 
■ dollars,  and  the  costs  and  expenses  of  the  said  pro- 
ceeding to  compel  such  payment,  to  wit :  the  sum  of 


dollars  and  your  fees  upon  this  warrant,  are  paid,  or  until 
he  is  discharged  according  to  law,  and  that  a  warrant  issue 
committing  the  said  C.  D.  accordingly : 

Now,  therefore,  you  are  hereby  required,  pursuant  to  said 
order,  to  arrest  the  said  C.  D.,  and  to  imprison  him  in  the 
said  jail  until  the  said  sum  of  money,  and  said  costs  and 
expenses,  are  paid,  or  until  he  is  discharged  according  to 
law.' 

Witness,  etc.  [teste]. 

[l.  s.]  J.  L.,  Clerk. 

M.  F.,  Attorney  for . 

[Office  address,"] 

[Indorsed.] 

The  said  C.  T).  may  give  an  undertaking  as  prescribed  by 

law,  in  the  sum  of dollars,  for  his  appearance  to 

answer. 

A.  O.,  Judge,  etc.^ 

ground.      (Ryckman  v.  Ryckman,  34  '  See  section  2285,  Code  Civ.  Pro., 

Hun,  238;  aff'd  98  N.  Y.,  239,  without  and  see  notes  to  forms  Nos.  1185, 1186. 

op.;  distinguishing  Cochrane  V.  Ing:er-  As  to  nature  of  confinement  under 

soil,  13  id.,  368;   contra,  Goodenough  process  for  contempt,  see  section  157, 

V.  Davids,  4  Month.  L.  BuL,  35.)  Code  Civ.  Pro.,  and  In  re  Clark  (20 

See,   also,  Strobridge  v.  Strobridge  Hun,  551). 

(21  Hun,  288),  In  re  estate  of  Anthony  A  copy  of  the  warrant,  and  of  the 

Battle  (20  Week.  Dig.,  392).  allidavit  upon  which  it  is  issued,  must 

In  a  proceeding  under  section  2286  be  served  upon  the  accused,  when  he 
of  Code  Civ.  Pro.,  for  the  release  of  is  arrested  by  virtue  thereof.  (Code 
the  defendant,  it  was  held  that  ina-  Civ.  Pro.,  §2274.) 
bility  to  pay  was  no  excuae,  if  caused  As  to  manner  of  execution  of  war- 
by  the  voluntai-y  act  of  the  party,  runt,  sec  section  2276  Code  Civ.  Pro. 
(Ryer  v.  Ryer,  33  Hun,  116.)  *  ^'•<'  i""'*'  -  t«'  f""'"  No.  122. 

See,  also,  note  1  to  foi-in  No.  1186.  '  ii*M  section  2275,  Code  Civ.  Pro. 


1062  Forms  Relating  to 

No.  1188. 

Order  to  Show  Cause  wliy  the  Accused  shouhl  not  be  Pun- 
ished for  the  Alleged  Offense. 

(Code  Civ.  Pro.,  §2209.) 

[At,  etc.,  as  in  form  No.  80  (when  made  by  court).] 
[Title  of  cause.] 

I  having  been  [or  the  court  having  been]  satisfied  by  the 

affidavit  of  A.  B.,  dated ,  18—,  that  C.  D.  has  [state 

the  offense  alleged  to  have  been  committed,  and  in  case  the 
offense  consists  of  the  refusal  to  obey  an  order  of  the  court 
requiring  the  payment  of  costs,  or  of  a  specified  sum  of 
money,  state  that  a  personal  demand  thereof  has  been  made, 
and  that  payment  thereof  has  been  refused  or  neglected] :  * 

I  do  hereb}^  order  and  require  [o7^  it  is  hereby  ordered  and 
required],  that  said  C.  D.  show  cause  before  me  [or  before 
this  court],  at,  etc.,  on,  etc.,  why  he  should  not  be  punished 
for  the  alleged  offense. 

I  do  hereby  further  order  [or  it  is  hereby  further  ordered], 
that  a  copy  of  said  affidavit  and  of  this  order  be  served  ui>on 

said  C.  D.,  personally,  on  or  before  the day  of 

. ,  18-. 

Date  [when  made  by  judge]. 

A.  O.,  Judge,  etc. 
{when  made  hy  judge). 

*  See  section  2268,  Code  Civ.  Pro.,  such  time   is   reviewable  at   General 

as  to  demand,  etc.     In  cases  under  Term.     (Id.) 

that  section  the  court  may  issue  with-  See,  also,  among  other  cases,  The 

out  notice  a  warrant  for  the  commit-  Mayor  v.  N.  Y.  &  S.  I.  Ferry  Co.  (64 

ment  of  the  offender.     See  form  No.  N.  Y.,  622),  Atlantic  &Pac.  Tel.  Co.  v. 

1187,  and  notes  thereto.  B.  &  0.  R.  R.  Co.  (S7  N.  Y.,  355;  affg 

An  order  to  show  cause,  granted  on  S.  C,  46  N.  Y.  Super.  Ct.,  377),  Isaacs 
the  eighth  of  July,  returnable  at  King-  v.  Isaacs  (10  Daly,  306),  Mahon  v. 
ston  at  10  A.  M.  on  the  tenth  of  the  Mahon  (5  Civ.  Pro.  R.  [Browne],  58;  S. 
same  month  and  served  at  noon  on  the  C.,  50  Super.  Ct.,  92),  Nay  lor  v.  Nay- 
ninth,  was  held  not  to  give  the  defend-  loi"  (32  Hun,  228),  Ryer  v.  Ryer  (67 
ants,  the  village  of  Athens  and  its  trus-  How.  Pr.,  369  ;  S.  C,  33  Hun,  116), 
tees,  reasonable  time  to  show  cause  Matter  of  Jones  (6  Civ.  Pro.  R.,  250), 
why  they  should  not  be  punished  for  Noland  v.  Noland  (29  Hun,  630), 
contempt  in  violating  an  injunction.  Gillies  v.  Kreuder  (1  Dem.,  349),  Mat- 
(Power  V.  Village  of  Athens,  19  Hun,  ter  of  Bradner  (87  N.  Y.,  171),  People 
165.)  ex  rel.  Negus  v.  Dwyer  (90  N.Y.,  402), 

The  discretion  of  the  justice  fixing  Brisbane  v.  Brisbane  (5  Civ.  Pio.  R. 


Contempts  othek  than  Ciuminal.  1063 

No.  1189. 

Order  Directing  Warrant  of  Attachment  to  Issue  for  Con- 
tempt of  Court. 

(Code  Civ.  Pro.,  §  2269,  subd.  2.) 

[At,  etc.,  as  in  form  No.  80.] 
[Title  of  cause.] 

On  reading  and  filing  the  affidavit  of  A.  B.,  dated , 

18 — ,  whereby  the  court  is  satisfied  that  C.  D.,  has  been 
guilty  of  a  contempt  of  this  court,  to  wit  [state  the  oifense], 
and  on  motion  of  M.  F.,  counsel  for : 

It  is  hereby  ordered,  that  a  warrant  of  attachment  issue 

to  the  sheriff  of  the  county  of [or  of  any  county 

where  said  C.  D.  may  be  found],  commanding  him  to  arrest 
the  said  C.  D.  and  to  bring  him  before  this  court  forthwith 
[or  at,  etc.,  on,  etc.],  to  answer  for  the  alleged  offense.* 


No.  1190. 

Warrant  of  Attachment  in  Proceedings  for  Contempt  of 

Court. 

(Code  Civ.  Pro.,  §  2269,  subd.  2.) 

[Title  of  proceeding.'] 
The  People  of  the  State  of  New  York,  to  the  Sheriff  of  the 

county  of \or  to  the  Sheriff  of  any  county 

where  C.  D.  may  he  found] : 
The  court  \or  I]  being  satisfied  by  the  affidavit  of  A.  B,, 

[Browne],  352 ;  S.  C,  67  How.  Pr.,  McDonald  v.  Keeler  (99  N.  Y.,  463, 
184),  Biett  V.  Brett  (33  Hun,  547),  rev'g-  S.  C,  32  Hun.  563),  People  v. 
Sandford  v.  Sandford  (-10  id.,  i)40),  Sharp  (107  N.  Y.,  427). 
People  ex  rel.  Clark  v.  Grant  (13  Civ.  An  order  to  show  cause  why  a  per- 
Pro.  R.,  183),  McCauley  v.  Palmer  (40  Bon  should  not  be  punished  for  con- 
Hun,  38),  Hart  v.  Johnson  (43  id.,  .'J05),  tempt  made  by  a  county  judge  whose 
Gamman  v.  Berry  (34  id.,  138),  Union  term  expires  before  the  return  day 
Trust  Co.  V.  Gage  (6  Dem.,  358),  Mat-  may  be  heard  before  his  successor, 
ter  of  Ammernian  (3  State  Rep.,  356),  (Gamman  v.  Berry,  34  Hun,  138.) 
aa  to  practice  in  these  proceedings.  As  to  judge  by  whom  order  may  be 

The  order  of  commitment  upon  re-  made,  see  Code  Civ.  Pro.,  §  2271. 

turn   of  order  to  show   cause  will  be  In  what  cases  it  may  be  made  by 

substantially    like     form     No.    1205,  referee  and  before  whom  it  shall  be 

changing    the    recitals   to    meet    the  returnable  in  such  case,  see  Code  Civ. 

facts.     No  warrant  of  commitment  is  Pro.,  section  2272,  and  see  Naylor  v. 

necessary  in  such  a  case.     (Code  Civ.  Naylor  (.'52  Hun,  228). 

.Pro.,  §  2283,  and  see  form  No.   1196,  The  order  may  be  made,  either  be- 

and  note  2  to  that  form.)  fore  or  after  the  linal  judgment  in  the 

As  to  j)nwer  of  legiwlature  to  punish  action,  or  the  final  order  in  the  special 

for  contempt  and  form  of  warrant  in  proceeding.     It  is  equivalent  to  a  no- 
their  jiroceedings,  see  People  ex  lel. 


10G4  Forms  Rp:latixg  to 

dated ,  18 — ,  that  C.  I).,  lias  been  guilty  of  a  con- 
tempt of  court,  to  wit :  that  C.  D.  has  [state  the  offense]: 
Now,  therefore,  yon  are  hereby  commanded  [pursuant  to 

the  order  of  the  court,  dated ,  18 — ],  to  arrest  the 

said  C.  D.  and  bring  him  before  our  [Supreme]  Court  [or 
before  me],  at,  etc.,  forthwith  [or  on,  etc.,  at,  etc.],  to  answer 
for  the  alleged  oli'ense.' 
AVitness,  etc.  [teste]. 

[l.  s.]  A.  O.,  Judge  [or  Referee],  etc.'' 

{when  issued  hy  judge,  etc.) 
[Or  J.  L.,  Cleric  {lohen  issued  hy  the  court).'] 

M,  N.,  Attorney  for . 

[Office  address."] 
[Indorsed.] 
The  said  C.  D.  may  give  an  undertaking,  as  prescribed 

by  law,  in  the  sum  of dollars,  for  his  appearance 

to  answer.* 

A.  0.,  Judge,  etc. 

No.  1191. 

Kotice  to  Sheriff,  etc.,  to  Return  Mandate  or  Show  Cause, 

etc. 

(Code  Civ.  Pro..  §  2270.) 

[Title  of  cause.] 

To  A.  M.,  Sheriff  of county : 

You  are  hereby  notified  to  return  the  execution  [etc.], 

tice  of  motion;    and  the   subsequent  ute,  that  an  attachment  for  contempt 

proceedings  thereupon  are  taken  in  the  was  onlj-  process  to  bring  the  accused 

action  or  special  proceeding,  as  upon  a  person  into  court,  and  that  an  appeal 

motion  made  therein.    (Code Civ.  Pro.,  to  the  Court  of  Appeals  would  not  lie 

§  2273.)  from  an  order  granting  it.     (At.  and 

'  See  note  1  to  form  No.  1188.  Pac.  Tel.  Co.  v.  B.  and  O.  R.  R.  Co., 

As  to  effect  of  warrant  of  attach-  87  N.  Y.,  355;  aff'g  S.  C,  46  N.  Y. 

ment,  see  section  2273  of  Code  Civ.  Super.  Ct.,  377.) 
Pro.,  cited  in  note  2  to  next  form  No.        A  copy  of  the  warrant,  and  of  the 

1190.  atfidavit  upon  which  it  is  issued,  must 

*  A  warrant  of  attachment,  in  these  be  served  upon  the  accused  when  he 
proceedings,  is  a  mandate,  wherel)j'  an  is  arrested  by  virtue  thereof.  (Code 
original  proceeding  is  instituted  against  Civ.  Pro.,  §  2274.)  See  return,  form 
the  accused,  in  behalf  of  the  people,  No.  1201. 

upon  the  relation  of  the  complainant.         As  to  manner  of  execution  of  war- 
{Code  Civ.  Pro.,  ^  2273.)  rant,  see  section  2276,  Code  Civ.  Pro.) 

•  It  was  held,  under  the  former  stat-        *  As  to  the  judge  by  whom  the  war. 


CojS'tempts  other  thax  Criminal.  1065 

heretofore  and  on  the clay  of ,  18 — ,  de- 
livered to  you  in  this  action,  within  ten  days  after  the 
service  of  this  notice,  or  to  show  cause  at  a  [Special]  Term 

of  the Court,  to  be  held  at,  etc.,  on,  etc.,  at  the 

opening  of  the  court  on  that  day,  or  as  soon  thereafter  as 
counsel  can  be  heard,  why  an  attachment  should  not  issue 
against  jou,  with  costs  of  this  motion.' 

Dated ,  18—. 

Yours,  etc., 

F.  M.  [Attorney  for  Plaintiff ^ 
[Office  address.'] 


No.  1192. 
Proot  of  Service  of  Notice  to  Return  Mandate. 

(Code  Civ.  Pro.,  §  2270.) 

[Title  of  cause.] 
County,  ss.: 


A.  B.,  of  ,  being  duly  sworn,  says,  that  on  the 

day  of ,  18 — ,  he  served  a  notice,  of  which 


the  annexed  is  a  copy,  on  E.  F.,  sheriff  of county, 

to  whom  it  is  directed,  by  delivering  the  same  to  him,  per- 
sonally, at {or  by  leaving  the  same  in  his  office,  in 

the of ,  during  the  hours  when  the  same 

is  required  by  law  to  be  kept  open,  no  person  being  present 
therein  (or  by  delivering  said  copy  to  M.  N.,  the  person  in 

charge  of  his  office  at during  the  hours,  etc.,  said 

person  being  in  his  said  office  at  the  time  of  said  service)].* 

A.  B. 
[Jurat  as  in  form  No.  46.] 

rant  may  be  i.ssued  and  where  returna-  '  See  rule  6  of  Gen.  Rules  of  Prac. 

hie,  see  Code  Civ.  Pro.,  §  2270  ;   and  *.See  note  2  to  form  No.  122. 

as  to  cases  in  which  it  may  l)e  issued  'See  section  184  of  county  law,  chiij). 

by  a  referee,  Jind  where  returnable  in  080  of  1892,  us  amended  by  chap.  718 

such  cases,  see  section  2272  (id.),  and  of  Laws  of  1>9.5,  as  to  service  of  paper 

Nayior  v.  Naylor  (82  Hun,  228).  upon  shei-iff. 

'S«?e  note  2  to  form  No.  122.  See,  al.si>,  Dunford  v.  "Weaver  (84  N. 

'See   section  2275,   Code  Civ.  Pro.  Y.,  445),  cited  in  note  1  to  form  No.  79. 
The  indorsement  is  discretionary. 

134 


1066  Forms  Relating  to 

No.  1193. 
Affidavit  of  Deiivery  of  Execution  to  Sheriff, 

(Code  Civ.  Pro.,  §  2370.) 

[Title  of  cause.] 
County  of ,  ss.: 

A.  B.,  of ,  being  duly  sworn,  says,  that  he  is  the 

attorney  for  the  plaintiff  in  the  above  entitled  action. 

That  Judgment  "was  rendered  therein  and  the  roll  thereof 

filed  in  the  clerk's  office  of county,  on  the 

day  of ,  18 — ,  for dollars  and cents 

damages  and  costs  in  favor  of  deponent  against  C.  D.,  and 
a  transcript  thereof  was  duly  filed  and  said  judgment  duly 

docketed  in  the  clerk's  office  of  the  county  of ,  on 

the day  of ,  18—  [as  this  deponent  is  in- 
formed and  believes]. 

That  execution  against  the  property  of  the  said  C.  D.,  in 
due  form  of  law,  was  duly  issued  thereon  to  E.  F.,   the 

sheriff  of  the  said  county  of  — ,  by  which  said  sheriff 

was  commanded  to  make  the  said  sum  of dollars, 

with  interest  and  his  fees,  and  to  return  the  said  execution 

to  the  clerk  of  the  county  of within  sixty  days 

after  the  receipt  thereof  by  him,  the  said  sheriff ;  and  that 
the  same  was  delivered  to  and  received  by  said  sheriff  for 

execution,  on  the day  of ,  18 — ,  as  this 

deponent  is  informed  and  believes 

That  this  deponent  has  made  inquiries  at  the  office  of  the 

€lerk  of county  for  said  execution,  and  he  has 

learned  that  although  the  time  for  returning  said  execution 
has  expired  said  execution  has  not  been  returned,  and  that 
the  said  Judgment  has  not  been  paid  to  the  plaintiff,  nor  has 
iiny  part  thereof,  but  that  the  whole  remains  due  and  un- 
paid, and  that  the  said  sheriff  is  in  default  in  not  returning 
the  said  execution,  and  in  not  paying  over  the  said  moneys.* 

A.  B. 

[Jurat  as  in  form  No.  46.] 

*  The  proof  of  receipt  of  execution    See  for  receipt  by  sheriff  of  mandate 
may  be  by  affidavit  or  other  written    form  No.  6, 
evidence.     (Code  Civ.  Pro.,  §  2270.) 


COTf TEMPTS   OTHER  THAN   CRIMINAL.  1067 

No.  1194. 

Clerk's  Certificate  of  the  Search  for  Execution  and  not 
Finding  Same. 

(Code  Civ.  Pro.,  §2270.) 

See  form  No.  402,  and  note  1  to  that  form.  Describe  the 
paper  as  follows :  The  execution  issued  in  the  action  be- 
tween A.  B.,  plaintiff,  and  C.  D.,  defendant,  to  E.  F.,  sher- 
iff of county. 


No.  1195. 
Affidavit  of  Searcli  for  Mandate. 

(Code  Civ.  Pro.,  §2270.) 

[Title  of  cause.] 

County  of ,  ss.: 

A.  B.,  of ,  being  duly  sworn,  says,  that  on  the 

day  of ,  18 — ,  he,  this  deponent,  made  in-. 

quiry  at  the  office  of  the  clerk  of  the  county  of , 


for  the  execution  issued  in  the  above  entitled  action  to  E. 

F.,  the  sheriff  of county,  and  that  deponent  was 

informed  by  said  clerk  [or  by  a  clerk  therein],  after  search, 
that  such  execution  had  not  been  returned  to  said  office ; 
and  this  deponent  verily  believes  that  such  execution  has 
not  been  returned  to  said  office. 

A.  B. 
[Jurat  as  in  form  No.  46.] 


No.  1196. 

Order  upon  Decision  of  Motion  to  Compel  Return  of  Man- 
date by  Sheriff. 

(Code  Civ.  Pro.,  ^^  2270,  2281,  2283.) 

[At,  etc.,  as  in  form  No.  80.] 

[Title  of  cause.] 

On  reading  and  filing  the  affidavit  of  A.  B.,  dated , 

18 — ,  showing  the  delivery  of  an  [execution]  in  this  action 
to  E.  F.,  the  slieriff  of county,  together  with  notice 


lOGS  Forms  Relating  to 

to  said  sheriff  to  return  the  same,  and  of  this  motion,  and 
due  proof  of  service  of  said  notice  and  a  copy  of  said  affi- 
davit upon  said  sheriff,  together  with  [an  affidavit]  showing 
that  such  [execution]  has  not  been  returned  according  to 
the  command  thereof,  and  on  motion  of  C.  M.,  of  counsel 
for  the  plaintiff,  after  hearing,  etc.  [and  on  filing,  name 
opposing  papers] ;  and  the  court  having  determined  [*]  that 
the  said  sheriff  has  not  returned  the  said  [execution]  as 
thereby  commanded,  and  that  his  neglect  to  do  so  was  cal- 
culated to  [and  actually  did]  defeat,  imx)air,  injure  and 
prejudice  tlie  rights  or  remedies  of  the  [plaintiff]  in  the 
above  entitled  action  [oj'  special  proceeding]  brought  in 
this  court : 

It  is  hereby  ordered  and  adjudged  accordingly,  that  the 
said  sheriff  has  not  returned,  etc.  [repeat  as  above  from  (*) 
to  :  It  is  hereby  ordered,  etc.].' 

And  it  is  hereby  further  ordered  and  directed,  that  a  fine 
of dollars,  being  the  amount  of  the  costs  and  ex- 
penses, which  appear  to  have  been  incurred  by  said  A.  B. 
by  reason  of  the  said  neglect  of  said  E.  F.,  be  and  the  same 
is  hereby  imposed  upon  the  said  E.  F.,  sheriff  as  aforesaid, 
and  that  said  E.  F.  pay  the  same  to  said  A.  B.,  or  his  attor- 
ney, in  satisfaction  of  the  costs  and  expenses  which  appear 
to  have  been  incurred  by  him  by  the  said  neglect  of  said 
E.  F. 

And  it  is  further  ordered  and  adjudged,  that  the  said  E.  F. 

be  imprisoned  by  the  coroners  of  the  county  of ,  or 

any  of  them,  in  the  common  jail  of  the  county  of 

until  he  has  returned  the  said  execution,  and  has  paid  the 
fine  hereby  imposed  upon  him,   to  wit :   the  said  sum  of 

dollars,  with  the  fees  hereupon  [and  that  a  warrant 

of  commitment  be  issued  accordingly]." 


'  The    order    must     adjudicate    in  rence  v.  Harrington   (63   Hun,   195)^ 

terms,  that  the  accused  has  committed  Wolf    v.  Buttner  (H  Misc.,  119). 

the  offense  charged,  and   that  it  was  "  The   offender   may  be    committed 

calculated  to,  or  did,  actually  defeat,  upon   a   certified   copy   of    the   oi'der 

impair,  etc.,  the  rights  or  remedies  of  without  further  process.     (Code  Civ. 

the  plaintiff.     If  it   does  not,  it  must  Pro.,  §2283.)    But  that  a  warrant  may 

be   reversed.     (Mahon   v.  Mahon,  19  also  be  issued,  see  (id.)  §  2285.     See 

Week.  Dig.,  346;  S.  C,  50  Super.  Ct.,  the   latter   section  as  to  length  of  im- 

92;  5   Civ.    Pro.   [Browne],   58.)     See  prisonment. 

also,  Wolfe  V.   Knight   (15  Misc.,  438),  Where  a  final  order  has  been  made. 

Matter  of  Sims  (57  Him,  433).  Fischer  convicting  a  person    of  contempt,  and 

v.  L:ingbien  (103  N.  Y.,  84),  Whitney  pronouncing  judgment  of  fine  and  im- 

V.  Whitney  (33  State  Rep.,  704),  Law-  prisonment,  the  proceedings  are  so  far 


Contempts  other  than  Criminal.  1069 

No.  1197. 
Undertaking  to  Procure  Discharge. 

(Code  Civ.  Pro.,  §  2277.) 

[Title  of  proceeding.] 

Whereas,  a  warrant  of  attachment  was  heretofore  issued 

by,  etc.,  to  the  [sheriff  of county]  in  the  above 

entitled  proceeding,  directing  the  said  sheriff  [state  direc- 
tions of  warrant] ;  and. 

Whereas,  by  the  indorsement  thereupon  of  the  judge, 
[etc.]  issuing  the  same,  the  said  C.  D.  was  authorized  to  give 
an  undertaking  for  his  appearance  to  answer  in  the  sum 
hereinafter  mentioned. 

Now,  therefore,  we,  the  said  C.  D.,  of ,  and  E.  F., 

of ,  by  occupation  a ,  and  G.  H.,  of , 

by  occupation  a ,  do  hereby,  jointly  and  severally, 

undertake,  pursuant  to  section  2277  of  the  Code  of  Civil 
Procedure,  with  the  people  of  the  State  of  New  York,  in 

the  sum  of dollars,  that  the  said  C.  D.  will  appear,^ 

at,  etc.,  on,  efc,  the  time  and  place  where  the  said  warrant 
is  returnable,  and  then  and  there  abide  the  direction  of  the 
court  [o7'  Judge  (or  referee)]. 

Dated ,  18—. 

C.  D. 
E.  F. 
G.  H. 

[Acknowledgment  or  proof,  justification  and  approval  as 
in  forms  Nos.  340  and  538.'] 


No.  1198. 

Affidavit  in  Proceedings  for  Contempt  where  the  Accused 
is  in  the  Custody  of  Sheriff,  etc. 

(Code  Civ.  Pro.,  §2278.) 

As  in  form  No.  1185,  adding  thereto- as  follows:  That  the 

tcnninated   that  a   cerliorari   may  be  with  a  warrant  of  attacliincnt  against 

issued    to   review    them.     (People   v.  the  i)Iaiiili(r'H  properly  before  tlie  re- 

Doriohue,  59  How.  Pr.,  417  [Gen.  Tni.,  turn  day,  is  no  exeuse  for  not  return- 

8upr.  (;t.].)  ing  the  execution.     He  should  make  ii 

The  fact   that  a  slicrilT  was  served  spcci;il   return   uccdnlin^j:   to  tiic   fact. 


1070  Forms  RELATrisrrr  to 

said  C.  D.  is  in  the  custody  of  the  sheriff  of county 

\or  name  other  officer],  by  virtue  of  an  execution  against 
his  person  [or  by  virtue  of  a  mandate  for  a  contenii)t  or 
misconduct  {or  by  virtue  of  a  commitment  upon  a  criminal 
charge,  stating  brief! 3'  the  particulars  of  the  execution,  etc., 
under  which  he  is  held)].' 

A.  B. 
[Jurat  as  in  forms  No.  46.] 


No.  1199. 
Writ  of  Habeas  Corpus  iu  Contempt  Proceedings. 

(Code  CMv.  Pro.,  §2278.) 

As  in  form  No.  lOoo  to  word  "by,"  in  line  three,  and  from 
thence  as  follows :  By  whatsoever  name  the  said  C.  D.  is 
called  or  charged,  before  [naming  court],  at,  etc.,  on,  etc.  [or 
immediately  after  the  receipt  of  this  writ],  to  answer  for  the 
offense  of  a  contempt  of  said  court,  to  wit  [naming  offense], 
to  do  and  receive  what  shall  then  and  there  be  considered 
concerning  the  said  C.  D.,  and  have  you  then  there  this 
writ. 

Witness,  etc.  [conclude  as  in  form  No,  1065]. 

[Indorsement  as  upon  form  No.  1190.'] 

[Signatures,  seal,  allowance,  etc.,  as  in  form  No.  1055.] 


No.  1200. 
Return  to  Writ  of  Habeas  Corpus  in  Contemi)t  Proceedings. 

(Code  Civ.  Pro.,  g  2279.) 

Substantially  as  in  forms  Nos.  31  and  1057. 

(Parker  v.  Bradley,  46  N.  Y.  Super.  ^  It  seems  to  be  implied  in  section 

Ct.,  244  [Sp.  Tm.].)  2279,  Code  Civ.  Pro.,  that  the  indorse- 

'  The  officer  taking  the  acknowledg-  ment  provided  for  by  section  2275  (id. ) 

ment  of  the  undertaking  must,  if  the  may  be  made  upon  this  writ  of  habeas 

sheriff  so  requires,  examine  under  oath,  corpus,  although  the  latter  section  in 

to  a  reasonable    extent,    the  persons  terms  only  provides  for  it  in  the  case 

offered  as  sureties    concerning    their  of  a  warrant  of  attachment. 

propertj'  and    circumstances.      (Code  As  to  dutj'  of  officer  to  whom  the 

Civ.  Pro. .  i;  2277. )  w'rit  is  directed,  see  section  2278,  Code 

*  Foi-  writ  of  habeas  corpus,  which  is  Civ.  Pro. 
required  to  be  i.ssucd  in  this  case  by 
eectioD  2278,  see  next  form,  Xo.  1199. 


Contempts  otiiek  than  Criminal.  1071 

[Or  wTiere  an  undertaking  has  been  given,  jDroceed  as  in 
form  No.  31  to  (*),  and  from  thence  as  follows :  Before  the 
return  day  of  said  writ  the  said  C.  D.  executed  and  deliv- 
ered to  me  the  undertaking,  which  is  filed  by  me  herewith.*] 

Wherefore  I  do  not  have  the  body,  etc.  [as  in  form  No.  31.] 


No.  1201. 

Return  to  Warrant  of  Attachment  in  Contempt  Proceed- 
ings. 

(Code  Civ.  Pro.,  §  2279.) 

I,  M.  N.,  sheriff  of county,  do  hereby  certify  and 

return  to  the  [within]  warrant  of  attachment,  that  I  have 
arrested  the  said  C.  D.  [and  have  him  before  this  court  at 
the  day  and  place  therein  mentioned],  as  I  am  thereby  com- 
manded, and  that  at  the  time  of  said  arrest  I  delivered  to 
the  said  C.  D.  a  copy  of  the  said  warrant  and  of  the  affidavit 
therein  mentioned  upon  which  it  was  issued. 

And  I  further  certify  and  return,  that  the  said  C.  D.,  pur- 
suant the  indorsement  of upon  said  warrant,  exe- 
cuted and  delivered  to  me,  before  the  leturn  day  thereof,  an 
undertaking,  which  I  file  herewith,  and  that  I  thereupon 
discharged  the  said  C.  D.  from  said  arrest. 

Dated ,  18—. 

M.  N.,  S7ieriff,  etc. 


No.  1202. 
Order  Directing  Interrogatories  to  be  Filed. 

(Code  Civ.  Pro.,  §2280.) 

[At,  etc.,  as  in  form  No.  80  (when  made  by  court).] 

[Title  of  proceeding.] 

The  defendant.  C.  D.,  having  been  charged  with  a  con- 
tempt of  court,  in  [violating  an  order  of  injimcrion  granted 
in  an  action  in  this  court,  between  A.  B.,  ])laintiir,  and  said 
C.  I).,  defendant],  and  a  warrant  of  attachment  [or  writ  of 
habeas  corpus]  having  been  heretofore  issued  against  liitn 
for  such  contempt,  directed  to  the  sheriff  of count}-, 

•  See  note  3  to  form  No.  ll'JU. 


1072  Forms  Relating  to 

and  returnable  here  on  tins day  of ,  18—, 

and  tlie  said  sheriff  having  made  return  thereto  that  he  had 
arrested  the  said  C.  D.,  and  brought  him  before  [this  court] 
at  this  time  and  place  as  thereby  commanded  [or  that  he 
liad  arrested  the  said  C.  D.,  and  that  said  C.  D.  had  given 
an  undertaking  as  allowed  by  the  indorsement  upon  said 
warrant  {or  writ)  and  had  been  thereui)on  discharged  by 
him,  which  undertaking  was  liled  by  said  sheriff  with  his 
said  return],  and  the  said  C.  D.  now  being  personally  before 
this  court  by  virtue  of  said  warrant  \or  of  said  writ],  and 
denying  that  he  is  guilty  of  the  offense  charged  against 
him  : 

It  is  hereby  ordered,  on  motion  of  M.  C,  attorney  for 
the  plaintiff,   that  the  said  A.  B.  do  forthAvith  [or  within 

days]  file  in  the  office  of  the  clerk  of  this  court 

interrogatories,  specifying  the  facts  and  circumstances  of 
the  offense  charged  against  him,  and  that  he  serve  a  (;opy 
thereof  upon  the  said  C.  D.  [or  upon  the  attorney  for  the 
said  C.  D.],  and  that  the  said  defendant  make  written 
answers  thereto,  under  oath,  and  file  the  same  with  the 

clerk  of  this  court  within after  the  time  wlien 

the  said  interrogatories  are  served  upon  him,  and  that  either 
party  may  produce  affidavits,  or  other  proof,  contradicting 
or  corroborating  any  answer  [*],  and  that  said  C.  D.  attend 
before  [this  court,  in  the  custody  of  said  sheriff],  on,  etc., 
at,  etc.,  that  [the  court]  may  determine  upon  the  original 
affidavits,  and  the  answers  and  proofs,  whether  the  said 
C.  D.  has  committed  the  offense  charged. 

A.  O.,  Judge,  etc. 
{loJien  made  by  judge.') 
Date  [when  made  by  judge,  etc.] 


No.  1203. 
Interrogatories  to  Accused  in  Contempt  Proceedings. 

(Code  Civ.  Pro.,  §2280.) 

[Title  of  proceeding.] 

Interrogatories  to  be  administered  to  C.  D.,  above  named, 
touching  a  contempt  alleged  against  him  for  [the  violation 


Contempts  other  than  Criminal.  1073 

of  tlie  order  of  injunction  issued  in  an  action  between,  etc.], 
which  interrogatories  are  filed,  pursuant  to  an  order  of  the 
court  [or  judge,  etc.],  dated ,  18 — . 

First  interrogatory :  Were  you,  or  w^ere  you  not,  on  or 

about  the day  of ,  18—,  or  at  any  other 

time,  and  at  what  time,  served  with  an  order  of  injunction, 
issued  in  an  action  in  said  court  bel^veen  A,  B,,  plaintiff, 

and  C.  D.,  defendant,  on  the day  of last? 

Was,  or  was  not,  such  order  served  upon  you  by  showing 
you  the  original  order  of  injunction,  signed  by  the  judge 
granting  the  same,  and  leaving  with  you  a  copy  thereof  ? 
[or  by  delivering  to  and  leaving  with  j'OU  a  copy  of  said 

order,  certified  by  the  county  clerk  of  the  county  of ?] 

When  and  by  whom  w^as  this  service  made  ?  Answer  this 
interrogatory  fully  and  particularly. 

Second  interrogatory :  [Proceed  in  the  above  manner, 
by  such  questions  as  will  show,  or  tend  to  show,  the  ac- 
cused guilty  of  the  offense  charged.'] 

G,  H.,  Attorney  for . 

[Office  address.'] 


No.  1204. 
Answer  of  Accused  to  Interrogatories. 

(Code  Civ.  Pro.,  §2280.) 

{Title  of  proceeding.] 

The  answer  of  C.  D.,  on  oath,  to  the  interrogatories  filed 
by  A.  B.  herein,  j^ursuant  to  an  order  of  the  court,  etc., 
made  on  the day  of ,  18 — . 

'  Interrogatories   are  not  necessary  A  temporary  injunction  which  by 

■where  the  proceedings  are  commenced  its  terms  is  to  continue  in  force  until 

Ly  order  to  show  cause.     (The  Mayor  further  order  of  the  court,  is  abrogated 

■V.  N.  Y.  and  S.  I.  Ferry  Co.,  64  N.  Y.,  by  a  final  judgment  in  the  action  in 

C22;  aff'g  S.  C,  40  N.  Y.  Super.  Ct.,  favor  of  plaintiff,  which  makes  no  pro- 

300;  Code  Civ.  Pro.,  §2280.)  vision  for  the  continuance  of  the  in- 

See,  also,  People  v.   Cartwright  (11  junction,  and  docs  not  grant  any  other 

Hun,  362),  People  v.  Cooper  (20  Ilun,  or  furtlicr  injunction,  and  there  can  be 

480),  Slater  v.  Merrill  (7")  N.  Y.,  2GS),  no  punishment  for  contempt  for  tlicre- 

In  the  matter  of  Steinert(24  Hun,  216),  after  disregarding  its  directions.   (Gard- 

Sargent  v.  Waireu  (2  State  Rep.,  179),  ner  v.  (iarduer,  87  N.  Y.,  14.) 

as  to  proceedings  U])Oii  return  of  war-  'See  note  2  to  form  No.  122. 
rant. 


1074  Forms  Relating  to 

First.  To  the  first  interrogatory  he  answers  and  says 
[insert  the  answer  to  the  first  interrogatory]. 

Second.  To  the  second  interrogatory  he  answers  and  says 
[insert  answer]. 

[And  in  like  manner  to  the  other  interrogatories.'] 

C.  D. 

[Jnrat  as  in  form  No.  46.] 


No.  1205. 


Order  Convicting  Defendant  of  the  Contempt  Charged,  and 
Directing  His  Punishment. 

(Code  Civ.  Pro.,  §2281.) 

[At,  etc.,  as  in  form  No.  80  (when  made  by  court).] 

[Title  of  proceeding.  ] 

A  warrant  of  attachment  [or  writ  of  habeas  corpus]  having 
been  heretofore  issued  out  of  this  court  [or  by  me],  directed 

to  the  sheriff  of county,  commanding  him  to  arrest 

C.  D.  and  to  bring  him  before  this  court  [or  before  me] 

forthwith  [or  on  the day  of ,  18 — ],   to 

answer  for  a  contempt  of  court  in  [violating  tlie  injunction, 
order  made  in  an  action  in  this  court,  between  A.  B.,  i)lain- 

tiff,  and  said  C.  D.,  defendant,  on  the  — day  of , 

• ,  18 — ,  in  that  (stating  manner  of  violation)],  and 


the  said  sheriff  having  made  return  thereto  that  he  had 
arrested,  etc.  [state  substance  of  return,  as  in  forms  Nos. 
1200,  1201],  and  the  said  C.  D.  [*]  having  appeared  person- 
ally in  this  court,  and  interrogatories  having  been  filed, 
jiursuant  to  the  order  of  this  court,  specifying  the  facts  and 
circumstances  of  the  offense  charged  against  him,  and  the 
said  C.  D.  having  made  written  answers  thereto,  on  oath, 
and  the  court  having  determined  upon  the  original  affida- 
vits, the  answers  and  subsequent  proofs,  to  wit  [naming 
other  papers  read],  [*1  that  the  said  C.  D.  has  committed 
the  offense  charged,  and  that  it  was  calculated  to  [and  actu- 
ally did],  defeat,  impair,  impede  or  prejudice  the  rights  or 
remedies  of  the  said  A.  B. : 

It  is  hereby  ordered  accordingly,  on  motion  of,  etc.,  that 

"  See  note  1  to  form  No.  1203. 


Contempts  other  than  Criminal.  1075 

the  said  C.  D.  lias  committedj  etc.  [repeating  as  above 
from  (*)].' 

And  it  is  further  ordered,  that  a  fine  of dollars 

be  and  the  same  is  hereby  imposed  upon  the  said  CD.  for 
his  misconduct. 

And  it  is  further  ordered,  that  the  said  C.  D.  pay  to  the 
said  plaintiff  the  costs  and  expenses  of  these  proceedings, 

amounting  to  the  sum  of dollars,  and  sheriff's  fees 

as  hereinafter  mentioned. 

It  is  also  further  ordered,  that  the  said  C.  D.  be  and  he 
is  hereby  directed  to  stand  committed  to  the  common  jail 

of  the  county  of ,  there  to  remain,  charged  upon 

said  contempt,  until  the  fine  imposed  as  aforesaid,  together 
with  the  said  costs  and  expenses,  and  sheriff's  fees  here- 
upon, or  upon  the  warrant  issued  pursuant  hereto,  be  fully 
X)aid,  unless  he  shall  be  sooner  discharged  by  the  court,  and 
that  a  warrant  of  commitment  be  issued  accordingly." 

Date  [when  made  by  judge]. 

A.  0.,  Judge ^  etc. 
{when  made  by  judge). 


No.  1206. 
Warrant  of  Commitment  Pursuant  to  Order. 

(Code  Civ.  Pro.,  g  2281.) 

[Title  of  proceeding.  ] 
The  People  of  the  State  of  Neio  YorTc,  to  the  Sheriff  of  the 
County  of ,  greeting  : 

Whereas,  an  order  was  made  by  the  [Supreme]  Court  at 
a  [Special]  Term  thereof,  held  at,  etc.,  on,  etc.,  in  the  above 
entitled  proceeding,  that  C.  D.  be  committed  to  the  common 
iail  of  the  county  of ,  there  to  remain  charged  with 

•  See  as  to  necessity  of  these  state-  *  Where  such  a  final  order  has  been 

ments,    Mahon   v.    Mahon   (19  Week,  made,  the  proceedings  are  so  far  termi- 

Dig.,  346  ,  cited  in  note  1  to  form  No.  nated,  that  a  certiorari  may  l)e  ibbued 

liyij).     Hasse  V.    Mattheson   (1  Misc.  to  review  them.     (People  v.  Donohue, 

2),  Bergin  v.  Deering  (70  Hun,  381),  59  How.  Pr.,  417  L«iip.  Ct.,  Gt-n.  Tin.].) 

Boon    V.    McGucken    (67    Hun,    251),  Bee,  also.  Wolf  v.  Buttner  (6  Misc.  R., 

People  ex  rel.  Cauflman  v.  Van  Buren  119),    as  to  contents  of  order  and  its 

(136  N.  Y.,  252),  MaUer  of  Muller  (67  natm-e. 

Hun,  34),   First  Nat.  Btink  of  PlattR-  Ah  to  diBposition  of  the  prisoner  upon 

hurgh    V.    FitzDatrick    (HO    Hun,    75),  return  of  habeas  corpus,  see  Code  Civ. 

Wolf  V.  B.itlner   (6  MIhc,  119),  Wolfe  Pro.,  §  2282. 

V.  Knight  (15  id.,  438).  As  to  amount  of  fine,  nee  (id.)  §2284; 


Contempts  other  than  Criminal. 


1075a 


the  contempt  mentioned  in  said  order,  until  he  should  have 
[paid  the  fine  mentioned  in  said  order,  imposed  upon  him 

for  his  said  misconduct,  amounting  to  the  sum  of 

dollars,  together  with  the  costs  and  expenses  of  the  pro- 
ceedings for  such  misconduct,  amounting  to  the  sum  of 

dollars,  and  the  sheriff's  fees  hereupon],  and  that 

a  warrant  of  commitment  issue  accordingly. 

Now,  therefore,  we  command  you,  that  you  take  the  body 
of  said  C.  D.,  and  him  safely  and  closely  keep  in  your  cus- 
tody, in  the  common  jail  of  the  county  of ,  until 

he  shall  have  fully  [paid  the  fine  imposed  as  aforesaid, 

to  wit:  the  sum  of dollars,  and  also  the  costs  and 

expenses  aforesaid,  amounting  to dollars,  and  your 

fees  hereupon],  or  until  the  said  C.  D.  shall  be  discharged 
by  the  further  order  of  this  court,  and  that  you  make  re- 


Martin  Cantine  Co.  v.  Warshaeur  (7 
Misc.,  412),  H.  M.  Co.  v.  Vennei-  (74 
Hun,  458). 

As  to  length  of  imprisonment,  see 
(id.)  §  2285;  Matter  of  Morris  (45 
Hun,  167),  Anonymous  (IS  Abb.  N.  C, 
216). 

That  the  expenses  of  the  proceed- 
ings to  punish  the  guilty  jiarty  may  be 
included  in  the  tine,  see  Bi-ett  v.  Brett 
(33  Hun,  547;  aff'd,  without  opinion, 
98  N.  Y.,  619),  and  cases  there  cited. 
See,  also.  Matter  of  Morris  (supra), 
Doyle  V.  Doyle  (4  Civ.  Pro.  R.,  265), 
Fenlon  v.  Dempsey  (22  Abb.  N.  C, 
114),  Matter  of  Bernhard  (16  State 
Rep.,  240),  Fall  Brook  Coal  Co.  v. 
Hecksher  (42  Hun,  534),  King  v. 
Flynn  (37  id.,  329),  Stubbs  v.  Ripley 
(39  id.,  626),  Matter  of  Jones  (6  Civ. 
Pro.  R.,  2.')0),  Wheelock  v.  Noonan  (55 
Super.  Ct.,  382),  King  v.  Barnes  (113 
N.  Y.,  476),  People  ex  rel.  Jones  v. 
Davidson  (35  Hun,  471),  Matter  of 
•Vramerman  (3  State  Rep.,  356),  Quig- 
iey  v.  Quigley  (45  Hun,  23),  Clark  v. 
Clark  (11  Civ.  Pro.  R.,  7),  People  ex 
rel.  Borst  v.  Grant  (41  Hun,  351), 
Moffat  v.  Herman  (116  N.  Y..  131), 
Fenlon  v.  Dempsey  (17  Civ.  Pro.  R., 
388),  People  ex  rel.  O'Conner  v.  Sickles 


(59  Hun,  342),  Lawrence  v.  Harrington 
(63  id.,  195),  People  ex  rel.  Meyer  v. 
Masonic  Guild,  etc.  (22  Civ.  Pro.  R., 
74),  Cunningham  v.  Hatch  (30  Abb. 
N.  C,  31),  Matlei-  of  Board  of  Health 
of  Yonkei-s  (69  Hun.  110).  Luedeke  v. 
Coursen  (3  Misc.,  559),  Meyer  v.  Drey- 
spring  (id  ,  560),  People  ex  rel.  Bald- 
win V  Miller  (9  Misc.,  1),  Langerman 
V.  McAdain  (6  Misc.,  374),  Holly  Mfg. 
Co.  V.  Venner  (74  Hun,  458),  Martin 
Cantine  Co.  v.  Warshaeur  (7  Misc  , 
412),  Hovey  v.  Elliott  (145  N.  Y.,  126), 
Taber  v.  Manhattan  R.  Co.  (14  Misc., 
189),  De  Witt  v.  Gunn  (24  Civ.  Pro., 
406). 

Where  the  party  acted  in  good  faith, 
and  in  accordance  with  what  he  be- 
lieved to  be  his  duty,  only  motion  fees 
and  disbursements  can  be  taxed  as 
costs.  (People  v.  Cooper,  20  Hun, 
486.)  See,  also,  King  v.  Flynn  (37  id., 
329.) 

For  form  of  commitment  for  con- 
tempt for  not  answering  (piestion,  see 
People  ex  rel.  Mitchell  v.  Sheriff  (7 
Al)b.  Pr.,  98  ;  29  Barb.,  622),  and  note 
1  to  form  No.  1206,  and  see  same  in 
criminal  contempt  proceeding,  form 
No.  1. 


1076  FoKMS  Relating  to 

turn  of  this  writ  with  your  proceedings  thereon,  to  our 
said  court.' 

Witness,  etc.  [teste]. 

[L.  s.]  J.  L.,  Clerk. 

F.  C,  Attorney  for ■ — 

[Office  address."] 

MEMORANDUM. 
In  a  case  referred  to  in  the  concluding  sentence  of  sec- 
tion 2285  Code  Civ.  Pro.,  say  after  word    "discharged"  in 
form  No.  1206,  as  follows:  according  to  law  or  by  the  fur- 
ther order  of  this  court,  said  imprisonment  not  to  continue 

longer  than  for  the  term  of months,  and  that  you 

make  return,  etc.  (concluding  as  in  form  No.  1206)  and,  in 
such  case,  say  after  word  "  unless  "  in  form  No.  1205,  as 
follows  :  he  shall  be  sooner  discharged  according  to  law 
or  by  the  court,  said  imprisonment  not  to  continue  longer 
than months,  and  that  a  warrant  of,  etc.  (conclud- 
ing as  in  form  No.  1205.) 


No.  1207. 
Affidayit  to  Obtain  Release  of  Offender, 

(Code  Civ.  Pro.,  §  2286.) 

[Title  of  proceeding.'] 
County,  ss.: 


C.  D.,  of  ,  being  duly  sworn,  says,  that  on  the 

*  See  People  ex  rel.  Jones  v.  David-  is  the  better  practice  to  so  set  them 

son    (21  Week.  Dig.,   324  ;   S.  C,  35  out.     (Id  ) 

Hun,  471),  as  to   warrant   in  case  of        See,  also,  last  paragraph  of  note  2 

contumacious  and  unlawful  refusal  to  to  form  No.  1205  ;  and  see  People  ex 

answer  legal   and   proper  interroga-  rel.  Duffus  v.  Brown  (46  Hun,    320), 

tories.  Matter  of  Jones   (6   Civ.    Pro.,    250), 

Although  it  is  not  necessary  that  the  People   ex  rel.  Pond   v.    Tamsen   (15 

questions   which   the  witness  has  re-  Misc.,  364). 
fused  to  answer  should  be  set  out  in        *  See  note  2  to  form  No.  12S. 
haec  verba  in  the  commitment,  yet  it 


Contempts  other  than  Criminal.  1077 

— day  of ,  IS — ,  a  warrant  was  issued  pur- 
suant to  the  final  order  of  the  court  made  in  the  above  enti- 
tled proceeding,  which  was  taken  to  punish  him  for  a 
contempt  of  court,  pursuant  to  title  third  of  chapter  seven- 
teenth of  the  Code  of  Civil  Procedure,  to  the  sheriff  of  the 
county  of ,  commanding  the  said  sheriff,  etc.  [recit- 
ing the  directions  of  the  warrant  (o7'  order)].' 

That  deponent  is  now,  and  has  been  since  the  ■ 

day  of ,  18 — ,  imprisoned  in  the  said  jail  of 

county,  in  the  custody  of  said  sheriff,  under  the  [warrant] 
aforesaid. 

And  this  deponent  further  says,  that  he  is  unable  to 
endure  said  imprisonment  [or  that  he  is  unable  to  pay  the 
sum  required  by  said  order  to  be  paid,  or  any  part  thereof 
(or  to  perform  the  act  or  duty  required  by  said  order  to  be 
23erf ormed)],  in  order  to  entitle  him  to  be  released  from  said 
imprisonment. 

That  [here  state  reasons  for  such  inability  to  endure  the 
imprisonment,  jjay,  etc.]. 

And  this  deponent  asks  that  the  court  will  make  an  order 
directing  the  said  sheriff  to  discharge  him  from  his  impris- 
onment.* 

CD. 

[Jurat  as  in  form  No.  46.] 


No.  1208. 
Notice  of  Application  for  Discharge  of  Offender. 

(Code  Civ.  Pro.,  ^  2286.) 

[Title  of  proceeding,  etc.'] 

Sir — Take  notice,  that  upon  the  affidavit,  with  a  copy  of 
which  you  are  herewith  served,  a  motion  will  be  made,  at, 
etc.,  on,  etc.,  for  an  order  directing  the  discharge  of  C.  D. 

'  If  the  imprisonment  is  under  the  Ryckman   (34   Hun,   235  ;    S.   C,    20 

order   of  the   court,  the  title   will   be  Week.    Dig.,    129),  Ryer  v.  Ryer   (33 

that  of  the  action,  etc.,  in    which    the  Hun,  116;  ii.  C,  67  How.  Pr.,  30it ;  19 

proceeding  was  taken,  and  the  aflida-  Week.  Dig.,  358).  People  ex  rel.  IJorst 

viLmust  be  changed  accordingly.  v.    (Jraiit,   (41    Hun,    351),    Matter    of 

^  See    Moore  v.  McMahon  (20  Hun,  Ryckman  (3'.t  Hun.  <54t;;  all  'd  S,  C,  M 

44),  Strobridge  v.  Strobridge  (21  Hun.  N.  Y.,  t)39).  Wl.celock  v.   Noonan  (5.. 

288),    Park    v.    Park    (18    Hun.    46t;),  Super.  Ct.,  302),  People  «x   rel.   Clark 

Mahon  V.  Mahon  (80  N.  Y.,  156;  all'g  v.  Grant  (13  Civ.  Pro.  R..  183).  HtuM.s 

S.  C,  19  Week.  Dig.,  346).   Matter  of  v.    Rij)ley   (39   Hun,    626;   102   JN.  v., 

Steinei-t    (29    Hun,  301),    Ryckman  v.  734). 


1078  Forms  Relating  to 

from   imprisonment   under   the  [warrant]  of  commitment 

heretofore  [issued]  herein,  and  for  such  other,  etc  ' 

Dated ,  18—. 

E.  F.,  Attorney  for  C.  D. 

[Office  address.'] 
To  A.  B. 


No.  1209. 
Order  Discharging  Offender  from  Imprisonment. 

(Code  Civ.  Pro.,  §  2286.) 

[At,  etc.,  as  in  form  No.  80  (when  made  by  court).] 
[Title  of  proceeding,  etc.] 

On  reading  and  filing  the  affidavit  of  C.  D.,  dated 


18 — ^  by  whicli  it  appears  tliat  said  C.  D.  is  imprisoned  in 

the  common  jail  of county,  in  the  custody  of  the 

sheriff  of  said  county,  under  a  [warrant  issued  to  him]  in 
the  above  entitled  [proceeding,  Avliich  was  a  pi'oceeding]  for 
a  contempt,  under  title  third  of  chapter  seventeenth  of 
the  Code  of  Civil  Procedure,  and  that  said  C.  D.  is  unable 
to  endure  said  imprisonment,  \or  is  unable  to  pay  the  sum 
required  by  the  final  order  in  said  f)roceeding  to  be  paid  {or 
to  perform  the  act  or  duty,  to  wit :  stating  same,  required 
by  the  final  order  in  said  proceeding  to  be  performed)]  by 
reason  of  [state  reason],  and  on  filing  proof  of  due  service 
of  notice  of  this  motion  upon  A.  B.,  and  on  motion  of  M. 
F.  for  said  C.  D.,  and  after  hearing,  etc.,  and  on  reading 
[name  opposing  papers  {or  no  one  appearing  to  oppose)] : 

It  is  hereby  ordered,  that  the  sheriff  of county, 

in  whose  custody  the  said  C.  D.  is  under  said  warrant  of 
commitment,  discharge  the  said  C.  D.  from  the  said  impris- 
onment' [here  state  terms  upon  which  discharge  is  granted]. 

A.  O.,  Judge  \or  Justice^  etc.] 
{w7i,e7i  made  by  Judge). 

Date  [of  judge's  order]. 

»  See  notes  to  form  No.  1307.  *  See  note  3  to  fonn  No.  123. 


Contempts  other  than  Criminal.  1079 

Xo.  1210. 
Order  when  Ace  used  does  not  Appear. 

(Code  Civ.  Pro.,  §2288.) 

As  in  form  No.  1205  to  [*],  and  from  thence  as  follows : 
Having  failed  to  appear  on  the  return  day  of  said  war- 
rant : ' 

It  is  hereby  ordered,  on  motion  of,  etc.  [f^,  that  another 
warrant  of  attachment  issue  herein  to  the  sherilf  of  the 

county  of ,  commanding  him  to  arrest  the  said  C. 

D.  and  bring  him  before  this  court  [etc.],  forthwith  [or  on,, 
etc.,  at,  etc.],  to  answer  for  the  said  offense. 

[Or  as  above  to  (f),  and  from  thence  as  follows  :  That  the 
said  undertaking  given  by  said  C.  D.  (upon  his  arrest  as 
aforesaid),  be  prosecuted  by  and  in  the  name  of  A.  B.'] 

Date  [when  made  by  judge]. 

[Signature] 
{when  made  byjtidge,  etc.\ 


No.  1211. 

Complaint  on  Undertaking  Given  for  Appearance  of 

Offender. 

(Code  Civ.  Pro.,  §2289.) 

[Title  of  cause.] 

The  complaint  of  the  above  named  plaintiff  respectfully 

shows,  that  heretofore  and  on  or  about  the day  of 

• ,  18 — ,  a  warrant  of  attachment  was  issued  out  of 

the Court  [or  by  A.  O.,  judge,  etc.]  in  a  proceeding 

taken  pursuant  to  title  third  of  chapter  seventeenth  of  the 
Code  of  Civil  Procedure  against  C.  D.  for  a  contempt  of 
court,  directed  to  the  sheriff  of county,  command- 
ing him,  etc.  [state  command  of  writ]. 

Tiiat  by  an  indorsement  upon  said  warrant  the  said  court 
[etc.]  authorized  the  giving  of  an  undertaking  by  said  C.  I). 
for  his  appearance  to  answer  in  tlie  sum  of dollars. 

That  said  C.  T).  was  arrested  by  the  said  sheriff  pursuant 
to  said  warrant,  and  that  thereupon  the  defendants  exe- 


'  Or  the  order  may  direct  both  the    cutioii  of  the  undertaking.     (Code  Civ, 

Issuing  of  the  warntiif  find  tlio  jimsc      I'lo.,  5^2288.) 


1080  Forms  Relating  to 

cuted  an  undertaking,  pursuant  to  statute,  a  copy  of  which 
is  hereto  annexed,  marked  "A,"  and  that  said  C.  D.  deliv- 
ered the  said  undertaking  to  said  sheriff  before  the  return 
day  of  said  warrant,  and  thereupon  the  said  sheriff  dis- 
charged said  C.  D.  from  said  arrest. 

And  this  plaintiff  further  says,  that  the  said  C.  D.  did 
not  appear  at  tlie  time  when,  and  the  place  where,  the  said 
warrant  was  returnable,  as  aforesaid,  to  wit,  at,  etc.,  on,  etc., 
and  then  and  there  abide  the  direction  of  the  said  court 
[etc.],  and  that  thereupon  an  order  was  duly  made  by  said 
court  [etc.],  directing  the  said  undertaking  to  be  prosecuted 
by  and  in  the  name  of  the  plaintiff. 

And  plaintiff  further  shows,  that  he  has  been  damaged 

by  the  misconduct  of  the  defendant  to  tlie  extent  of 

dollars,  and  that  he  has  been  put  to  costs  and  expenses  in 
the  proceeding  in  which  said  warrant  was  issued  amounting 
to  the  sum  of dollars. 

Wherefore  plaintiff  prays  judgment  against  the  defend- 
ants for  the  sum  of dollars,  with  the  costs  of  this 

action.* 

C.  F.,  Plaintiff^  s  Attorney. 

[Office  address.'] 

[Verification  as  in  forms  Nos.  151,  etc.] 


TITLE  IV. 

FORMS  RELATING  TO  PROCEEDINGS  TO  COLLECT  A  FINE. 

(Code  Civ.  Pro.,  Ch.  17,  Tit.  4.) 

No.  1212.     Warrant  for  collection  of  fines  imposed  by  court  of  record. 


No.  1212. 

Warrant  for  Collection  of  Fines  Imposed  by  Court  of 

Record. 

(Code  Civ.  Pro.,  §2293.) 

To  the  Sheriff  of  the  County  of .* 

You  are  hereby  commanded,  pursuant  to  the  provisions 


'  See,  as  to  action  by  attorney-gen-  1896,  reading  as  follows  :  Where  mis- 
eral  or  district  attorney  upon  the  under-  conduct,  which  is  punishable  by  tine  or 
taking,  section  2290  of  Code  Civ.  Pro.  imprisonment,  as  prescribed  in  this 
'  See  note  2  to  form  No.  122.  title,  occurs  at  a  trial  term,  or  with  re- 
See,  also,  as  to  punishment  of  mis-  spect  to  a  mandate  returnable  at  such 
conduct  at  trial  term,  §2292  of  Code  term,  and  was  not  punished  at  the  term 
Civ.  Pro.,  as  amended  by  ch.  946  of  at  which  it  occurred;  the  Supreme 
Laws  of  1895,   taking  effect  Jan,   1,  Court  may  inquire  into  and  punish  the 


Collection  of  Fines. 


1081 


of  title  fourth  of  chapter  seventeenth  of  the  Code  of  Civil 
Procedure,  to  collect  from  each  of  the  persons  named  in 
the  schedule  hereto  annexed,  the  sum  set  opposite  that  per- 
son's name  ;  and  to  pay  over  the  sum  collected  to  the  treas- 
urer of  the  county  of ,  and  to  return  this  warrant 

■with  your  proceedings  thereuxwn  at  a term  of  the 

Court,  to  be  held  next  after  the  expiration  of  sixty 


days  from  the  receipt  hereof  by  you.' 

[l,  s.]  J.  L.,  County  Clerk  of 

\or  other  description']. 


County 


SCHED  ULE  of  the  fines  imposed  hy  the Court,  at  a 

[Trial  Term  of  the  Supreme  Court \,  held  at  the 

of ,  in  \andfor]  tlie  County  of ,  on  the 

day  of ,  18 —  \iipon  residents  of  the 

],'  toithout  being  accompajiied  loith 


County  of 

an  order  for  the  immediate  commitment  of  the  person 
so  fined,  until  the  fine  is  paid : 


Amount  of  Fink 


State  of  New  York,  ) 

County,       ) 

I,  J.  L.,  clerk  of  said  county,  do  hereby  certify,  pur- 
suant to  the  provisions  of  title  fourth  of  chapter  seventeenth 


misconduct,  as  if  it  had  occurred  at  a 
•Special  Term  of  the  Sui)reine  Court, 
held  in  the  Hame  county,  or  with  re- 
spect to  a  mandate  returnable  at  such 
a  Kpecial  Term. 

'  Ah  to  i)lace  where  retur.iabie  ami 
])roceedirif<H  iii>oii  failure  fo  retui-n, 
see  Code  Civ.  Pro.,  neclion  225(7.  aw 
amende<l  Ity  rhap.  Oltj  of  L:iwh  of 
1896,  taking  effect  January  1,  18'Jt>. 

ia6 


As  to  manner  of  execution  of  war- 
rant, see  section  2296  (id.). 

Ah  to  liability  of  sheriff,  see  pection 
2300  (id.),  and  form   No.  943.  _ 

Ah  to  appli<:ation  of  thin  title,  866 
Hf'ction  2:i  1,  Coile  Civ.  Pro. 

'If  a  deliiKiuent  rfsidt'H  in  anothei 
county,  a  sepiiiatt"  vvuri-aiil  for  the  col- 
lection of  the  tin.'  impof-r.l  upon  him, 
with  un  appropriate  hcIumIiiIc  annt-xed 
thereto,   must   l)e  isHued   in   liU'-   nmn- 


1082  Forms  Relating  to 

of  the  Code  of  Civil  Procedure,  that  the  foregoing  schedule 
contains  a  true  abstract  of  tlie  orders  imposing  fines  [ui^on. 

residents  of  the  county  of Y  made  at  a  [Trial  Term  of 

the  Supreme  Court],  held  at  the of  ,  in  the 

county  of ,  on  the day  of ,  18—, 

without  being  accompanied  with  an  order  for  the  immediate 
commitment  of  the  jjerson  so  lined  until  said  fine  is  paid. 
In  witness  whereof,  etc. 

J.  L.,  County  UlerTi  of County 

[or  other  description'}. 


TITLE  V. 

FORMS  RELATESTG  TO  PROCEEDINGS  TO  DISCOVER  THE  DEATH 
OF  A  TENANT  FOR  LIFE  OF  REAL  PROPERTY. 

(Code  Civ.  Pro.,  Ch.  17,  Tit.  5). 

No.  1213.     Petition  for  production  of  tenant  for  life  of  real  property. 

1314.  Notice  of  presentation  of  petition. 

1315.  Order  upon  presentation  of  petition. 

1216.  Affidavit  to  procure  writ  of  habeas  corpus  for  prisoner,  etc, 

1217.  Referee's  report  in  these  proceedings. 

1318.  Order  dismissing  the  petition  when  the  original  order  has  been 
complied  with. 

1219.  Petition  of  person  evicted  for  restoration  to  possession  of  real  prop- 
erty. 

1230.  Complaint  in  action  by  person  evicted  under  order  for  rents  and 
profits. 


No.  1213. 

Petition  for  Production  of  Tenant  for  Life  of  Real  Prop- 
erty. 

(Code  Civ.  Pro.,  §2303.) 

To  the  Supreme  Court  of  the  State  of  New  TorJc  :^ 

The  petition  of  A.  B.  respectfully  shows,  [*]  that  he  is 
the  owner  [in  fee]  of  the  remainder  of  certain  real  property 

situated  in  the of ,  in  the  county  of , 

and  is  entitled  to  claim  the  same  after  the  death  of  C.  D.,  who 

ner  to  the  sheriff  of  the  county  where        '  Insert  this  clause  in  brackets  when 
he  resides.     (Code  Civ.  Pro.,  §  3295.)     there  are  delinquents  residing  in  other 

counties. 


Discovery  of  Life-Tenant.  1083 

is  entitled  to  a  life  estate  therein,  which  said  real  property  is 
described  as  follows,  to  wit  [describe  same]. 

That  M.  F.  is  in  possession  of  said  real  property  under 

title  derived  from  the  said  C.  D.,  being  the  tenant  for 

years  of  the  said  C.  D.  [or  state  other  interest]. 

[0?'  that  M.  F.  is  the  guardian  of  said  C.  D.,  who  is,  if 
living,  an  infant  under  the  age  of  twenty-one  years  {or  is  the 
husband  of  said  C.  D.,  if  living,  or  is  the  trustee,  etc.,  of 
said  C.  D.,  if  living),  and  as  such  is  the  person  who  has  or  is 
entitled  to  the  custody  of  the  person  of  said  C.  D.  [or  to  the 
care  of  the  estate  of  said  C.  D.).] 

That  your  petitioner  believes  that  the  said  C.  D.  is  dead, 
and  that  such  belief  is  founded  upon  the  following  grounds, 
to  wit  [state  same]. 

That  no  apjplication  has  been  [heretofore]  made  for  the 
relief  hereby  prayed  for  [within  one  calendar  year  from  the 
date  of  this  petition]. 

Wherefore  your  petitioner  prays  for  an  order,  directing 
the  production  of  the  said  C.  D.,  as  prescribed  in  title  fifth 
of  chapter  seventeenth  of  the  Code  of  Civil  Procedure,  by 
the  said  M.  F.' 

Dated ,  18—. 

A.  B. 
County,  ss.  : 

A.  B.,  of ,  being  duly  sworn,  says,  that  he  is  the 

petitioner  named  in  the  foregoing  petition,  by  him  sub- 
scribed, and  that  the  matters  of  fact  therein  set  forth  are 
true. 

A.  B. 

[Jurat  as  in  form  No.  46.] 


No.  1214. 
Notice  of  Presentation  of  Petition. 

(Code  Civ.  Pro.,  §2304.) 

Sir — Take  notice,  that  the  annexed  [or  foregoing]  peti- 

'See  note  1  to  form  No.  1214,  as  to  terest  or    posaeBsion,   and   see,   also, 

place   at  which   application   is   to   be  Matter  of  Zeph  (fjO  Hun,  .'')23)  ;  note  1 

made.  to  form  No.  31 G.     A  proceeding,'- (;annot 

'See    Avery  v.   Everett    (21   W<;ek.  be   iiiHtilnted  liiidcr   Code  Civ.   I'lo., 

Dig.,  268  ;  36  Hun,  6,  afPd  S.   C,  110  §  2302  to  recpiiro  tho  production  of  a 

N.  Y.,  317),  aa  to  the  cane  of  a  felon  ilevinee  who  holtlH  a  bane  or  detorrnin- 

imprisoned  for  life,  and  that  in  hiHcane  ablt;  fee,  liable  to  be  defeatiul  by  her 

an    estate   in    remainder,    dependinf^  death  without  issue  (Matter  of  Hyde, 

upon  hiH  death,  would  not  vest  in  in-  41  Hun,  72). 


1084  Forms  Relating  to 

tion  will  be  presented  to  the  Supreme  Court,  at  a  Special 
Term  thereof  to  be  held  at,  etc..  on,  etc.,'  and  that  applica- 
tion will  be  made  to  said  court,  upon  such  x^'esentation,  at 
the  opening  of  said  court,  or  as  soon  thereafter  as  counsel 
can  be  heard,  for  the  relief  therein  specified." 

Dated ,  18—. 

A.  B.  [or  M.  N.,  Attorney  for  A.  B.]. 
[Office  address.'] 
To  M.  F.  {Guardian,  etc.']. 


]No.  1215. 

Order  upon  Presentation  of  Petition  for  Discovery  of  Death 
of  Life-Tenant. 

(Code  Civ.  Pro.,  §  2305.) 

[At,  etc.,  as  in  form  No.  80.] 
[Title  of  proceeding.] 

Upon  the  presentation  of  the  petition  and  affidavit  of 

A.  B.,  which  petition  bears  date ,  18 — ,  with  due 

proof,  by  the  affidavit  of ,  dated ,  18 — , 

of  service  of  a  copy  thereof,  and  of  notice  to  M.  F.  [guard- 
ian, etc.],  of  the  presentation  of  the  same  at  this  court,  on 
this  day,  [*]  and  no  sufficient  cause  to  the  contrary  having 
been  shown  by  said  M.  F.,  and  on  motion  of  I.  J.,  counsel 
for  said  petitioner,  and  after  hearing  R.  T.,  for  said  M.  F., 
and  on  reading  [name  opposing  papers  {or  no  one  appearing 
to  opx^ose)] : 

It  is  hereby  ordered,  that  the  said  M.  F.  [guardian,  etc.], 
produce  the  said  C.  D.  before  this  court  [or  before  I.  L., 
who  is  hereby  appointed  as  referee  for  that  purpose],  at, 
etc.,  on,  etc.,  or,  in  default  thereof,  to  prove  that  he  is 
living.' 

[Or  as  above  to  (*)  and  from  thence  as  follows  :  And  the 


*  The  application  is  to  be  made  at  a  must  be  personally  served  at  least  four- 
Special  Term  of  the  Supreme  Court,  teen  days  before  its  presentation  upon 
held  within  the  judicial  district,  where-  the  person  required  by  the  prayer  of 
in  the  property,  or  a  part  thereof,  is  the  petition  to  produce  the  tenant  for 
situated.     (Code  Civ.  Pro.,  §  2302.)  life.     (Code  Civ.  Pro.,  §  2304.) 

-  A  copy  of  the  petition,  including  ^  See  note  2  to  form  No.  122. 

the  affidavit,  together  with  this  notice,  "  See  section  2306,  Code  Civ.  Pro.,  as 


Discovery  of  Life-Tenak^t.  1085 

said  M.  F.  (as  guardian,  etc.)  having  presented  to  tlie  court 

presumptive  proof,  by  the  affidavit  of ,  dated , 

18 — ,  that  the  said  C.  D.  is,  or  lately  was,  at ,  in  the 

State  of : 

It  is  hereby  ordered,  on  motion  of ,  of  counsel 

for  said  A.  B.,  and  after  hearing,  etc.,  that  the  said  A.  B. 
is  hereby  required  to  take  out  a  commission  (to  F.  C.  and 

G.  M.,  residing  at ,  in  the  said  State  of ),  for 

the  purpose  of  obtaining  a  view  of  the  said  C.  D.,  and  of 
taking  such  testimony  respecting  his  identity  as  the  parties 
produce  : 

And  it  is  further  ordered  and  directed,  that  the  proceed- 
ings upon  the  said  petition  be  stayed  until  the  return  of  the 
said  commission  ;  and  that  the  said  petition  be  dismissed, 
with  costs,  unless  the  said  petitioner  takes  out  such  commis- 
sion Avithin days  from  the  date  of  this  order,  and 

diligently  procures  it  to  be  executed  and  returned  at  his 
own  expense.'] 

No.  1216. 

Artidavit  to  Procure  Writ  of  Habeas  Corpus  for  Prisoner, 

etc. 

(Code  Civ.  Pro.,  §  2307.) 

[Title  of  proceeding.] 
County,  ss.  : 


M.  F. ,  of ,  being  duly  sworn,  says,  that  this  pro- 
ceeding is  brought  to  obtain  the  discovery,  pursuant  to  title 
fifth  of  chapter  seventeenth  of  the  Code  of  Civil  Procedure, 
of  C.  D.,  a  life-tenant  of  certain  property  described  in  the 
petition  herein. 

That  [state  what  proceedings  have  been  taken]. 

to  service  of  order,  powers  of  referee,  ther,  as  to  execution  of  coniniission, 

etc.  see  (id.)  sections  2813,  2314,  2:Jir). 

'  See  Code  Civ.  Pro.,  §  2311,  as  to  the  Upon  the  return  of  the  eonunissiou, 

issuing  of  commission;  for  general  pro- '  the  proceedings  are  the  same  as  upon 

visions  respecting  it,  see  (id.)  .section  the  report  of  a  referee,  as  i)rescribed 

2312, and  for  form  of  commi.ssion,  etc.,  in  sections  2309,  2310,  (.\n\v  Civ.  Pro. 

see  forms  Xos.  382,  etc.,  which  forms  IJut  the  court  may.  in  lis  discretion, 

are  to  be   modified  according  to   tlie  receive  additional    proof  from    either 

requirements  of  the  order;  and,  fur-  party.     (Code  Civ.  Pro.,  §  2315.) 


10S6  FOKMS    liELATlNG   TO 

And  deponent  furtlier  sajs,  that  the  said  C.  D.  is  impris- 
oned in  the ,  at ,  and  is  in  the  custody  of 

[stating  officer],  for  the  [crime]  of ,  and  not  upon  a 

sentence  for  a  felony,  or  is  kept  [or  detained]  within  this 

State,  to  wit:  at ,  by  G.  M.,  as  this  deponent  is 

informed  and  believes  by  R.  S,  and  T.  W.,  whose  affidavits 
are  also  hereto  annexed  [or  state  reasons  why  their  affidavits 
cannot  be  procured].' 

M.  P. 

[Jurat  as  in  form  No.  46.] 


No.  1217. 

Referee's  Report  in  Proceeding  to  Compel  Production  of 

Life-tenant. 

(Code  Civ.  Pro.,  §  2308.) 

[Title  of  proceeding.] 

I,  I.  J.,  duly  appointed  by  the  court  in  the  above  entitled 
proceeding,  do  hereby  respectfully  report: 

That  I  have  been  attended  by  the  parties  and  their  coun- 
sel, and  have  heard  the  allegations  and  proofs  of  the  par- 
ties, having  first  taken  the  oath  prescribed  by  law,  which, 
is  hereto  annexed. 

That  a  person  was  produced  before  me  [or  that  no  person, 
was  produced  before  me]  as  being  C.  D.,  the  i^erson  whose 
death  is  in  question,  and  that  I  have  taken  in  the  form  of 
depositions,  which  are  hereto  annexed,  the  proofs  which 
have  been  taken  before  me  respecting  the  identity  of  the 
said  person  so  produced  with  the  said  C.  D.  [or  in  case  of 
no  one  being  produced,  say  as  follows,  after  word  annexed : 
the  proofs  which  have  been  taken  before  me  upon  the  ques- 
tion whether  the  said  C.  D.  is  living] 

And  I  further  report,  that  my  conclusions  upon  the  ques- 
tions controverted  before  me  are  as  follows  [state  same]. 

All  of  which  is  respectfully  submitted.* 

Dated ,  18—. 

I.  J.,  Referee. 

'  For  form  of  this  writ  of  habeas  '  The  referee  must  deliver  his  report 
corpus,  see  form  No.  1055.  to  the  petitioner,   or  31c  it  with  the 


Discovery  of  Life-Tenant.  1087 

No.  1218. 

Order  Dismissing  tl:e  Petition  when  tlie  Original  Order 
lias  been  Complied  with. 

(Code  Civ.  Pro.,  §§  2309,  2310.) 

[At,  etc.,  as  in  form  No.  80.] 
[Title  of  proceeding.] 

Upon  filing  the  report  of  I.  J.,  the  referee  appointed  in 

the  above  proceeding,  dated ,  18 — ,  and  the  proofs 

thereto  appended,  by  which  it  appears  to  the  satisfaction  of 
the  court  [or  the  court  having  heard  the  proofs  and  allega- 
tions of  the  respective  parties  upon  their  appearing,  pursu- 
ant to  the  order  of  the  court  made  herein  on  the 

day  of ,  18 — ,  from  which  proofs  and  allegations  it 

appears  to  its  satisfaction]  [*]  that  M.  F.  [guardian,  etc.], 
the  party  required  to  produce  the  tenant  for  life,  or  to  prove 
his  existence,  has  fully  complied  with  the  said  order,  and 
on  motion  of  M.  R.,  counsel  for  said  M.  F.,  after  hearing, 
etc.  : 

It  is  hereby  ordered,  that  the  petition  of  A.  B.,  in  this 
proceeding,  be  and  is  hereby  dismissed. 

And  it  is  further  ordered,  that  said  A.  B.  pay  the  costs  of 

these  proceedings,  to  wit :  the  sum  of dollars  to 

said  M.  F.,  guardian,  etc. 

[Or  as  above  to  (*),  and  from  thence  as  follows :  That 
C.  D.,  the  person  ujjon  whose  life  the  final  estate  depends, 
was  not  produced  ;  and  M.  F.,  the  party  required  to  jjroduce 
him,  or  to  prove  his  existence,  has  not  proved  to  the  satis- 
faction of  the  court  that  he  is  living : 

Now,  on  motion  of ,  for  the  petitioner,  after  hear- 
ing, etc.: 

It  is  hereby  ordered  and  declared,  that  the  said  C.  J),  is 
presumed  to  be  dead,  for  the  purpose  of  these  proceedings: 

And  it  is  further  ordered  and  directed,  that  the  peti- 
tioner, said  A.  B.,  be  forthwith  let  into  possession  of  the 
real  property  described  in  the  ])etition  heiein,  as  follows 
(describe  same),  as  if  the  said  C.  D.  were  actually  dead  (and 

clerk,  within  ten  days  after  the  case  is    and  is  entitled  to  the  same  coni|)(,'iisa- 

closed.     (Code  Civ.  Pro.,  (^  2;}08.)  tioii  as  a  referee  a|)p()inle(i  for  th<!  trial 

The  referee  has  the  same  powers,     of  an  issue  in  an  actiiiu.     (Id.,  ^2300.) 


1088  FoKMS  Relating  to 

that  the  said  A.  B.  pay  to  the  said  M.  F.  the  sum  of 

dollars,'  for  the  costs  and  disbursements  of  this  proceeding.)} 


No.  1219. 

Petition  of  Person  Evicted  for  Restoration  to  Possession 
of  Ileal  Property. 

(Code  Civ.  Pro.,  §  2317.) 

[Title  of  proceeding.] 

As  in  form  No.  1213  to  [*],  and  from  thence  as  follows : 

That  heretofore  and  on  or  about  the day  of , 

18 — ,  A.  B.  presented  a  ]3etition  to  this  court  in  the  above 
entitled  proceeding,  pursuant  to  the  provisions  of  title  fifth 
of  chapter  seventeenth  of  the  Code  of  Civil  Procedure,  pray- 
ing for  an  order  directing  the  production  of  C.  D.,  the  tenant 
for  life  of  the  real  property  hereinafter  mentioned  by  your 
petitioner  [guardian,  etc.],  and  that  such  proceedings  were 

thereupon  had,  that  on  the day  of ,  18 — , 

an  order  was  made  by  this  court,  a  copy  of  which  is  hereto- 
annexed,  awarding  to  said  A.  B.  the  possession  of  said  real 
property  as  prescribed  in  said  title,  ujion  the  presumption 
of  the  death  of  said  C.  D. 

That  under  said  order,  and  pursuant  thereto,  your  peti- 
tioner was  evicted  from  the  said  real  property. 

And  your  jDetitioner  further  says,  that  the  said  C.  D.  is 

now  living  at [as  your  petitioner  is  informed  and 

believes  by  M.  N.  and  J.  H.,  w^hose  affidavits  are  hereto 
annexed],'  and  he  prays  that  this  court  will  grant  an  order 
restoring  him  to  the  possession  of  said  real  property,  which 
is  described  in  the  said  order  of  which  a  copy  is  hereto 
annexed.' 

Dated ,  18—. 

M.  F. 

[Verification  as  in  form  No.  1213.'] 

^  A  gross  sum  not  exceeding  fifty  awarded,  to  be  paid  by  the  petitioner, 

dollars,  in  addition  to  disbursements.  (Code  Civ.  Pro.,  §g  2809,  2310,  2316.) 

These  may  be  denied  or  awarded  to  or  *  If  the  affidavits  are  not  annexed 

against  either  party  as  justice  requires,  account  for  their  absence.     See  note  2 

in  case  the  order  is  in  favor  of  the  peti  to  form  No.  178,  and  note  2  to  form 

tioner.     In  the  case  of  the  dismissal  No.  236. 

of  the  petition,   such  costs  must  be  ^  The  proceedings  on  the  petition  are 


Discovery  of  Life  Tenant.  1089 

Xo.  1220. 

Complaint  in  Action  by  Persons  Evicted  under  Order  for 
Rents  and  Profits. 

(Code  Civ.  Pro.,  §2318.) 

[Title  of  cause.] 

The  complaint  of  the  above  named  plaintiff  respectfully 

shows,  that  heretofore,  and  on  or  about  the day  of 

,  18—,  a  proceeding  was  brought  in  the  ■ 

Court,  pursuant  to  title  fifth  of  chapter  seventeenth  of  the 
Code  of  Civil  Procedure,  by  the  defendant,  the  party  entitled 
to  the  remainder  therein  [in  fee],  for  the  discovery  of  the 
death  of  C.  D.,  the  tenant  for  life  of  certain  real  property, 
described  as  follows,  to  wit  [describe  same]. 

That  such  proceedings  were  had  in  the  said  proceeding, 

that  on  the day  of ,  lb — ,  an  order  of  said 

court  was  entered  therein,  a  copy  of  which  is  hereto  annexed 
marked  "A,"  and  referred  to  as,  and  made  part  of,  this 
complaint. 

That  the  plaintiff  was  evicted,  pursuant  to  said  order,  andl 

said  defendant  let  into  possession  thereof,  on  the 

day  of ,  18 — ,  by  the  sheriff  of county,  and 

remained  out  of  said  possession  until  on  the day 

of ,  18 — ,  when  he  was  restored  to  the  possession 

thereof  [by  the  order  of  the  said Court,  made  pur- 
suant to  his  petition,  a  copy  of  which  order  is  hereto  annexed 
marked  "B,  '  and  is  referred  to  as,  and  made  a  part  of,  this 
complaint]. 

That  during  the  above  mentioned  time  for  which  he  was 
deprived  of  the  possession  of  said  premises,  the  said  A.  B. 
occupied  the  same,  and  that,  during  all  of  said  time,  the 
said  C.  D.  was  living,  and  that,  at  the  time  of  such  evic- 
tion, the  plaintiff  was  entitled  to  an  estate  therein  for  [state 
term  thereof]  under  title  derived  from  said  C.  D.  as  his  ten- 
ant, etc.  ' 

And  plaintiff  further  shows,  that  the  i-ents  and  profits  of 
said  property,  during  sucli.i)eriod  of  his  being  evicted  from 

the  same  as  upon  the  original  applica-  ^  Tlicic  may  Itc  some  doiilil   as   to 

tion.     (Code  Civ.  Pro.,  §  2317.)     The  whetlier  the  petition  is  to  be  verified 

petition  may  also  lie  made  by  the  heirs  in  the  general  form  as  in  form  No,  52, 

or  legal  representatives  of  the  person  or  as  jjrcscribed  in  section  2303  for  the* 

evicted.     (Id.)  original  jtctition. 

137 


1090  Forms  Relatin(j  to 

said   property,  and   wliile   lie   was   entitled   to   possession 

thereof  as  aforesaid,  amounts  to  the  sum  of dol- 

lais,  for  which  amount,  with  the  costs  of  this  action,  plain- 
till"  demands  judgment  against  the  defendant, 

M.  N.,  Plaint) ff^s  Attorney. 
[Office  address.'] 
[Verification  as  in  forms  Nos.  151,  etc.] 


TITLE  YI. 

FORMS  RELA.TING  TO  PROCEEDINGS  FOR  THE  APPOINTMENT 
OF  A  COMMITTEE  OF  THE  PERSON  AND  OF  THE  PROPERTY 
OF  A  LUNATIC,  IDIOT  OR  HABITUAL  DRUNKARD,  AND  TO 
THE  GENERAL  POWERS  AND  DUTIES  OF  Tin<]  COMMITTEE. 

(Code  Civ.  Pro.,  Cb.  17,  Tit.  G.) 

No.  1221.  Petition  for  appointment  of  committee  of  person  incompetent  to 
muniige  himself  or  his  affairs,  in  consequence  of  hinacy,  etc. 

1223.  Aflidavit  to  be  annexed  to  petition. 

1223.  Petition  by  overseers  of  tlie  poor  for  appointment  of  committee. 

1224.  Notice  of  presentation  of  petition. 

1225.  Order  for  commission  or  for  jury  trial. 

1226.  Commission  to  inquire  as  to  lunacy,  etc. 

1227.  Oath  of  commissioners. 

1228.  Precept  to  sheriff  to  svimmon  jury. 

1229.  Sheriff's  return  to  precept. 

1230.  Oath  to  jurors. 
1231  Oath  to  witnesses. 

1232.  Subpoena  for  witnesses. 

1233.  Notice  to  lunatic,  etc.,  of  execution  of  commission 

1234.  Notice  to  produce  lunatic,  etc. 

1235.  Inquisition. 

1236.  Notice  of  application  to  confirm  finding  of  jury. 

1237.  Final  order  on  return  of  commission. 

1238.  Bond  of  committee. 

1239  Commission  to  committee. 

1240.  Complaint  in  action  by  committee  of  lunatic,  etc. 

1241.  Complaint  in  action  against  committee. 

1242.  Petition  by  lunatic,  etc,  for  discharge  of  committee,  etc.,  on  bis 

recovery. 

1243.  Affidavits  annexed  to  petition  for  discharge  of  committee. 

1244.  Order  discharging  committee. 

1245      Inventory  and  account  of  committee  to  be  rendered  annually. 
1246.     Order  for  inventory  or  account,  or  for  further  inventory,  etc.,  by 
committee. 


'  See  note  2  to  form  No.  122.  action,  see  section  2319,  Code  Civ.  Pro. 

As  to  effect  of  final  order  as  evidence        This  complaint  may  be  modified  to 

in  action  of  ejectment,  or  in  the  above    meet  the  particular  facts  of  the  case. 


Appointment  of  Committee  of  Lunatic,  etc.     1091 
No.  1221. 

Petition  for  Appointment  of  Committee  of  Person  Incom- 
petent to  Manage  Himself  or  His  Afl'airs  in  Consequence 
of  Lunacy,  etc. 

(Code  Civ.  Pro.,  §§  2323,  2324,  2325.) 

To  the  Supreme  Court  [or  name  other  court] : ' 

The  petition  of  A.  B.,  of ,  respectfully  shows, 

that  C.  D.,  who  resides  in  the of ,  in  the 

county  of ,  and  State  of [or  the  place  of 

whose  residence  cannot  be  ascertained  by  your  petitioner], 
is  a  lunatic,  etc.,  and  is  incomjDetent  by  reason  and  in  con- 
sequence of  such  lunacy,  etc.,  to  manage  himself  [or  his 
affairs]. 

[That  said  C.  D.  is  seized  of  personal  property  situated 

at ,  in  (this    State)    consisting  of ,  of  the 

probable  value  of  not  to  exceed dollars,  and  of  real 

estate,  situated  at ,  in  (this  State),   the  probable 

value  of  which  does  not  exceed  the  sum  of dollars.-] 

That  the  names  and  residences  of  the  husband  [or  wife] 
of  said  C.  D.,  and  of  his  next  of  kin  and  heirs,  are  as  follows, 
so  far  as  the  same  are  known  to  your  petitioner,  or  can  be 
ascertained  by  him  with  reasonable  diligence,  to  wit  [state 
efforts  made  to  ascertain  them],  namely  [state  the  names 
and  residences]. 

[That  service  of  notice  of  the  application  to  be  made 

upon  this  petition  upon  said [or  uj^on  the  overseer 

{or  superintendent)  of  the  poor  ;  or  name  officer  exercising 
corresponding  functions  under  another  official  title,  of  the 

town,  etc.,  of ,  should  be  dispensed  with  for  the 

following  reasons  (state  same).'] 

*  Except   as   provided  in   the   next  institution   is  situated  of  which  he  is 

section,  where  the  application  is  made  an  inmate.     (Code  Civ.  Pi-o.,  §  2323.) 

to    the    Su[)reme    Court,    the   jjetition  See  further  as  to  courts  havin^f  juris- 

rauHt  hi;  i)resente(l  at  a  Special  Term  diction  of  pioceeiliny,  and  tlie  nature 

held  within  the  judicial  district,  or  to  of  such  jui-isdiclion,  iil.,  ^^  20;i  (subd. 

a  justice  of  said  court  within  such  ju-  8),  340  (subd.  4),  2320;  an<l  pco  unicnd- 

dicial  district  at  chambers,  where  the  ment  to  section  2320    l)y  cluij).  .')04  of 

person  alleg'ed  to  be  incompetent  re-  Laws  of  1894,    takirif,--   I'WWl   Sept.  1, 

sides ;  or  if  he  is  m  t  a  resident  of  the  1894,  and  also  a^^  to  d<'sif,'-nalion  of  lu- 

State,  or   the    place   of  his   residence  natic,  etc.,  in   procfedinjfs.     See  also, 

cannot  ))e  a.scertained,  where  some  of  Matter  of  Win;,'   (83  Hun.  284);  also 

his  property  is   situated,  or  the  State  amendment   to   section   2320  of  Ctula 


Appointment  of  Committee  of  Lunatic,  etc.    1091a 


% 


Civ.  Pro.,  by  chap.  946  of  Laws  of 
1895,  taking  effect  Jan.  1,  1896 ;  and 
seeBection  2323(a),  id.,  added  by  chap. 
824  of  Laws  of  1895,  as  to  application 
when  incompetent  person  is  in  a  State 
institution  ;  petition  by  whom  made; 
contents  and  proceedings  upon  pre- 
eentalion  thereof.  The  above  form 
may  be  easily  adapted  to  such  case, 
mutatis  viutandis.  See  also,  section 
2323(b),  also  added  by  said  chap.  824, 
as  to  award  of  costs  and  disburse- 
ments to  petitioner  in  cases  provided 
for  by  said  section  2323(a) ;  and  see, 
further,  section  2336(a),  added  by 
same  chapter  as  to  sections  of  Code 
Civ.  Pro.  not  applicable  in  such  cases. 
^The  petition  in  a  case  of  a  non- 
resident of  the  State  must  show  that 


the  alleged  lunatic,  etc.,  has  property 
situated  in  the  State.  It  is  not  suffi- 
cient to  state  that  fact  in  the  affida- 
vits annexed  to  the  petition.  (Matter 
of  Fowler,  2  Barb.  Ch.,  305.)  By  an 
amendment  to  section  2325  of  Code  Civ. 
Pro.,  by  ch.  263  of  Laws  of  1891,  taking 
effect  Sept.  1,  1891,  the  petition  must 
state  in  addition  to  above  allegations 
what  property  has  been  conveyed  by 
the  alleged  incompetent  person  dur- 
ing the  alleged  incompetency,  and  to 
whom,  and  its  value,  and  what  con- 
sideration was  paid  for  it  or  was 
agreed  to  be  paid  for  it,  if  any.  See 
note  2,  p.  1092,  to  this  form  for  such 
amendment  in  full. 

^  See  In  re  Demelt  (27  Hun,  480),  as 
to  the  necessity  for  this  statement. 


1092  FOKMS  Relating  to 

That  annexed  hereto  are  the  affidavits  of  P.  F.  [and  G.  C], 
showing  that  the  said  C.  D.  is  a  lunatic,' etc.,'  and  that 
the  case  is  one  of  those  specified  in  title  sixth  of  chapter 
seventeenth  of  the  Code  of  Civil  Piocedure. 

Wherefore  your  petitioner  prays  that  this  court  will  ap- 
point a  connnittee  of  the  person  [and  property,  or  of  the 
property,  or  of  a  portion  of  the  j^roperty  (specifying  it)]  of 
said  C.  D.,  pursuant  to  the  provisions  of  said  title.' 

Dated ,  18—. 

A.  B. 

\0r  A.  B.  hy  M.  F.,  Ms  Attorney], 
[Office  address,'] 
County,  ss.: 

A.  B.  [or  M.  F.],  of ,  being  duly  sworn,  says,  that 

he  is  the  above  named  petitioner  [or  that  he  is  the  attorney 
for  the  above  named  petitioner]  ;  that  the  matters  of  fact 
stated  in  said  petition  are  true. 


[Jurat  as  in  form  No.  46.] 


A.  B.  \pr  M.  F.]. 


No.  1222. 
Affidavit  to  be  Annexed  to  Petition. 

(Code  Civ.  Pro.,  §  2325.) 

County,  ss.: 


P.  F.,  being  duly  sworn,  says,  that  he  is  and  has  been  lor 
a  practicing  physician,  and  resides  in  the 


of ,  in  the  county  of 

That  he  has  made  an  investigation  as  to  the  sanity,  etc., 

'It  is  usual  to  require  the  affidavit  chap.  263  of  Laws  of  1891,  taking  ef- 

of  a  physician  as  to  lunacy,  etc.,  but  feet  Sept.  1,  1S91 ;  Matter  of  Jackson 

the  court  may,  in  its  discretion,  grant  (37  Hun,   300),    In   re  Cook  (6  N.  Y. 

the  writ  upon  the  affidavit   of  a  non-  Sujip.,   720),   Southern  Tier  Masonic 

professional  person.     After  the  return  Relief    Ass'n    v.    Laudenbach,    5  id., 

of    an    inipiisition    finding'    sufficient  901),    Matter  of  Baird    (8  State  Rep., 

facts,  the  sufficiency  of  the  allegations  493),  In  re  Klock  (49  Hun,  450),  Dom- 

of  the  petition  cannot  be  questioned,  inick   v.    Dominick    (20    At)b.   N.   C, 

(In  re   Zimmer,    15    Hun,    214.)     For  286),  Viets  v.  Union  Nat.  Bk.  of  Troy 

form  of  affidavit  see  form  No.  1222.  (101  N.  Y.,  563;  rev'g  S.  C,  31  Hun, 

'  See  further  as  to  this  proceeding,  484),   Matter   of  Mason,   51  id,  138), 

Hunter  v.  Hatfield  (12  Hun  3S1;  S.C.,  Hughes  v.  Jones  (116  N.  Y.,  67),  Mat- 

73   N.  Y.,  600),  In  re  Rogers  (9  Abb.  ter  of  Sanford   (39   State   Rep  ,  8  8), 

N.    C,    141),    Matter   of   Church    (G4  Matter  of  Dunn  (37  id.,  802),    Gridley 

How.  Pr.,  393)  ;   Section  2325  of  Code  v.  College  of  St.  Francis  Xavier  (137 

Civ.  Pro.  and  amendment  thereto  by  N.  Y.,  327).     The  amendment  cf  1891 


Forms  Relating  to 


1092a 


above  referred  to,  of  section  2325, 
Code  Civ.  Pro.,  was  by  inserting-  the 
following  words  :  and  also  the  proba- 
ble value  of  the  property  possessed 
and  owned  by  the  alleged  incompe- 
tent person,  and  what  property  has 
been  conveyed  during  said  alleged 
incompetency,  and  to  whom,  and  its 
value,  and  what  consideration  was 
)->aid  for  it,  if  any,  or  was  agreed  to 
be  paid. 

As  to   appointment  of  foreign  com- 


mittee in  case  of  a  non-resident  of  the 
State  residing  within  the  United  States, 
see  section  2326,  Code  Civ.  Pro.,  and 
as  to  rights  of  foreign  committee,  see 
In  Matter  of  Bomanjee  Byramee  Co- 
lah  (S  Daly,  308),  la  re  Traznier  (2 
Redf.,  171).  In  such  a  case  it  should 
apiiear  by  the  petition  that  such  a  com- 
mittee has  been  appointed.  See  also, 
Butler  V.  Jarvis  (51  Hun,  248). 
^  Bee  note  2  to  form  No.  122. 


Appointment  of  Committee  of  Lunatic,  etc.    1093 

of  C.  D.,  mentioned  in  the  annexed  petition  of  A.  B.,  for 
the  appointment  of  a  committee  of  the  person  [and  prop- 
erty] of  said  C.  D. 

That  as  the  result  of  said  investigation  he  is  of  the  opinion 
that  said  C.  D.  is,  by  reason  of  lunacy  [or  idiocy,  or  habitual 
drunkenness],  incompetent  to  manage  himself  or  his  affairs, 
and  that  he  has  been  in  that  condition  for past. 

That  the  grounds  of  deponent's  opinion  and  belief  are  as 
follows  [state  same,  setting  forth  facts  and  circumstances 
showing  insanity,  or  idiocy,  etc.],' 

P.  F. 

[Jurat  as  in  form  No.  46.] 


No.  1223. 

Petition  by  Overseers  of  the  Poor  for  Appointment  of  Com- 
mittee, 

(Code  Civ.  Pro.,  §  2324,  2325.) 

To  the  Supreme  Court  \or  name  other  cou7-t] : 

The  petition  of  M.  B.  and  F.  D.  respectfully  shows,  that 
they  are  the  overseers  of  the  poor  for  the  town,  etc.,  of 

,  in  the  county  of [or  otherwise  describe 

the  officers  by  their  official  titles]. 

That  C.  D.,  who  resides  in  said  town,  etc.,  of ,  is, 

as  your  petitioners  are  informed  and  believe,  a  lunatic,  etc., 
and  that  by  reason  of  his  said  lunacy,  etc.,  is  incompetent 
to  manage  himself  or  his  affairs. 

That  no  relative,  or  other  person,  has  applied  for  the  ap- 
pointment of  a  committee  of  the  person  or  property  of  the 
said  C.  D.  [make  the  further  aDegations  contained  in  the 
petition,  form  No.  1221]. 

Dated  — ,  18—. 

M.  B. 
F.  D. 

[Annex  affidavit  as  in  form  No.  1222.] 

[Veriftcation  as  in  fomi  No.  1222.] 


•See  In  re  Zirnmer  (15  Hun,  214),  be  made.  See,  also,  generally,  as  to 
cited  in  note  1,  pag'e  1092,  to  form  No.  j)etition  and  contentH  thereof,  notes  to 
1221,  as  to  by  whom  tin;  affidavit  may     form  No.  1221. 


1004  FoKMS  Ukj./vting  to 

No.  1224. 
Notice  of  Presentation  of  Petition. 

(Code  Civ.  Pro.,  i^  2325.) 


To : 

Take  notice,  tliat  tlie  petition  of  A,  B.,  a  copy  of  which 
is  hereto  annexed,  will  be  presented  to  the  [Supreme]  Court 
at  a  [Special]  Term  thereof,  to  be  held  at,  etc.,  on,  etc.,  at 
the  opening  of  the  court,  or  as  soon  as  counsel  can  be  heard, 
and  an  application  will  then  and  there  be  made  to  said 
court  that  the  prayer  of  the  said  petitioner  be  granted.' 
Yours,  etc., 

M.  N.,  Attorney  for  Petitioner. 
[Office  address.'] 
To  [name  parties  specified  in  the  order]. 


No.  122.5. 
Order  for  Commission  or  for  Jury  Trial. 

(Code  Civ.  Pro. ,  t^  2327.) 

[At,  etc.,  as  in  form  No.  80.] 

[Title  of  proceeding.] 

Upon  reading  and  filing  the  petition  of  A.  B.,  dated 
■ ,  18 — ,  in  the  above  entitled  matter,  and  pray- 
ing,   etc.    [recite    prayer   of    petition],    together  with   the 

affidavit  of  P.  F.  thereto  annexed,  dated ,  18 — ,  by 

which  it  presumptively  appears,  to  the  satisfaction  of  the 
court,  that  the  case  is  one  of  those  specified  in  title  sixth  of 
chapter  seventeenth  of  the  Code  of  Civil  Procedure,  and 
that  a  committee  ought,  in  the  exercise  of  a  sound  discre- 
tion, to  be  appointed  for  the  person  [and  estate]  of  said 

C.  D.,  alleged  to  be  a and  to  be  incompetent,  by 

reason  of ,  to  manage  himself  or  his  affairs,  and 

'  As  to  consequences  of  omission  to  deems  proper,  and  for  that  purpose  the 

require  notice  to  be  given  by  the  order  hearing  may  be  adjourned  to  a  subse- 

or  to  state  in  the  petition  reasons  why  queut  day,  or  to  another  term  at  which 

it  should  not  be  given,  see  In  re  De-  the  petition  migh*have  been  presented- 

melt  (27  Hun,  480).  (Code  Civ.  Pro.,  g  2825.) 

The  notice,  when  ri'quired,  may  be  '  See  note  2  to  form  No.  122. 
given  in  any  manner  which  the  court 


Appointment  of  Committee  of  Lunatic,  etc.    1095 

after  hearing  M.  N.  for  tlie  said  jwtitioner,  and  F.  R.  for 
,  and  on  reading  [name  any  opposing  papers]  : 

It  is  hereby  ordered,  [*]  that  a  commission  issue  to  [name 
commissioner  or  commissioners,  stating  residences  and  occu- 
pations], directing  said  commissioners  to  cause  the  sheriff 

of  the  county  of to  procure  a  jury,  and  that  they 

inquire  by  the  said  jury  into  the  matters  set  forth  in  the 
said  petition,  and,  also,  into  the  vakie  of  tlie  real  and  per- 
sonal property  of  the  said  C.  D.,  and  the  amottnt  of  his 
income  [add  directions,  with  reference  to  conveyance  by 
him,  as  contained  in  commission,  form  No.  1226]. 

And  it  is  further  ordered,  that  upon  the  execution  of  the 
said  commission  the  person  or  persons  having  charge  of  the 
said  C.  D.,  or  in  whose  custody  he  shall  be,  do  produce  him 
before  the  said  commissioners  and  jury,  to  be  inspected  and 
examined  by  them,  whenever  required  to  do  so  by  such 
commissioners  ;  and  that  notice  of  the  hearing  before  such 
commissioners  and  jury  be  given  to  [name  parties],  person- 
ally [or  name  other  manner  of  service].' 

[And  it  is  further  ordered,  that  testimony  respecting  any- 
thing said  or  done  by  said  C.  D.,  or  his  demeanor  or  state 
of  mind,  more  than  tw^o  years  before  the  hearing  before  said 
commissioners  and  jury  shall  be  received  as  proof  of  the 
lunacy  of  said  C.  D.'] 

[Insert  any  further  directions  as  prescribed  by  the  court.'] 

[0?'  as  above  to  (*),  and  from  thence  as  follows :  That  the 
questions  of  fact,  arising  upon  the  competency  of  the  said 
C.  D.,  be  tried  by  a  jury  at  a  trial  term  of  this  court,  to  be 
held  at,  etc.,  on,  etc.,*  and  that  the  following  questions  of 
fact  be  then  and  there  tried,  to  wit  (state  same)  {or  pro- 
vide for  settlement  of  the  questions  to  be  tried).'' 

That days  previous  notice  of  the  trial  of  such 

questions  be  given  to  (name  persons). 

(Insert  any  further  directions  required  by  the  court.'*)] 

'  Sf^e  Code  Civ.  Pro.,  §  2328,  and  In  an  order  for  a  Biiiiilar  trial  is  made  ia 

re  Demelt  (27  Hun,  480),  cited  in  note  an  action.   -  (I<1.)    See  foraiB  Nos.  352, 

1  to  form  No.  1124.  etc.     See,  also,  amendment  to  Hcction 

'  See  Code  Civ.  Pro.,  §  2335.  2327  of  Code  of  Civil  Procedure,   by 

^  See  Code  Civ.  Pro.,  §  232B.  addinj,'   Bubdivi.sion    3  thereto,  faking 

*See  Code  Civ.   Pro.,  §  2327,  Bubd.  f'ffert  Sept.  1.  J8!ll  (Lhwh  of  1891.  .-h. 

2,  as  amended  Vjy  ch.   94G  of  Laws  of  263).  ami  Hei;  amen(lmentH  to  said  ho«'- 

189.').  takiiijf  effect  .Jan.  1.  1890.  tioii  2:527.  by  cli.  94«  of  .Lhwh  of  1895. 

'See   section    2334.    Code  Civ.  Pro.  lakiii^' efTecl  .Ian.  1,  189(;.  tind   to  naid 

The  questions  may  be  nettled  a«  where  section  2334,  by  same  chajiter. 


1096  FOKMS  Rklatino  to 

No.  1220. 
Commission  to  Inquire  as  to  Lunacy,  etc. 

(Code  Civ.  Pro.,  ^5  2328.) 

The  People  of  the  K^tate  of  New  York,  to  H.  R.,  J.  A.  C. 
ami  L.  E.  of  the  county  of ,  greeting : 

Know  ye,  that  we  have  assigned   to  yon,   to  rniise  the 

sheriff  of county  to  procui'e  a  jury,  and  to  inquire 

by  the  said  juiy  into  the  matters  set  ioith  in  llie  jictition 

of  A.  B.,  dated ,  18 —  [of  which  a  cojjy  is  hereto 

annexed],  and  also  into  the  value  of  the  real  and  ])ersonal 

property  of  C,  D.,  of ,  and  the  amount  of  his  income, 

and  whether  the  said  C.  D.  is  a  lunatic  [or  an  idiot,  or  an 
habitual  drunkard,  etc.],  and  is  incompetent,  by  reason  of 
such  lunacy,  etc.,  to  manage  himself  or  his  affairs,  and  if  so, 
from  what  time,'  after  what  manner  and  how,  and  whether 
the  said  C.  D.,  being  so  incompetent,  has  alienated  any 
lands  or  tenements  or  not,  and,  if  so,  what  lands  or  tene- 
ments, to  what  person  or  persons,  when,  where,  in  what 
manner  and  how  ;  and  what  lands  and  tenements  still  re- 
main to  him,  and  of  what  value  the  lands  and  tenements  by 
him  alienated,  as  well  as  by  him  retained,  and  how  much  the 
rents,  issues  and  profits  thereof  are  worth  by  the  year ;  and 
what  is  the  value  of  his  goods,  chattels  and  personal  estate ; 
and  who  will  be  the  nearest  heirs  of  the  said  C.  D.  and  enti- 
tled to  his  estate,  in  case  of  his  death,  and  of  what  age  [add 
any  further  instructions  as  prescribed  by  the  orderj. 

And,  therefore,  we  command  you,  that  at  a  certain  day 
and  place,  or  at  certain  days  and  places,  which  you  for  that 
purpose  shall  appoint,  you  diligently  make  inquisition  in 
the  premises,  and  that  you  cause  reasonable  notice  of  the 
time  and  place  by  you  appointed  for  that  purpose,  to  be 
given  to  the  said  C.  D.,  and  that  you  send  the  inquisition 
which  you  shall  thereupon  make,  signed  by  you  or  by  the 
majority  of  you,  and  by  those  persons  by  whom  it  shall  be 
made,  distinctly  and  plainly  and  without  delay,  to  our  [Su- 
preme] Court,  together  with  this  writ. 


*  As  to  the  time  to  which  the  inquiry     §  2335,  amended  by  ch.  946  of  Laws  of 
will  be  restricted  unless  specially  di-     1895,  taking'  effect  Jan.  1,  1896. 
reeled  by  the  order,  see  Code  Civ. Pro., 


APPOIN'I  ME^'T  OF  COMMITTEE  OF  LUXATIC,   ETC.      1097 

Witness,  J.  P.,  one  of   the  justices  of   our   [Sux)i'emeJ 

Court,  at  — ,  on  the day  of ,  18 — .' 

[L.  s.]  J.  L.,  Clerk. 

J.  C,  Attorney  for  tlie  Petitioner. 
[Office  address. 'J 

Return  to  Commission". 
The  execution  of  this  commission  appears  in  the  schedule 
hereunto  annexed. 

H.  R.,      I 

J.  A.  C,  >•  Commissioners, 
L.  E.,       ) 


No.  1227. 
Oath  of  Commissioners. 

(Code  Civ.  Pro.,  §  2329.) 

[Title  of  proceeding.] 
County,  ss.: 


We,  H.  R.,  J.  A.  C.  and  L.  E.,  the  commissioners  ap- 
pointed by  a  commission  issued  in  the  above  entitled  pro- 
ceeding, dated  on  the day  of ,  18 — ,  do 

severally  swear,  that  we  will  faithfully,  honestly  and  impar- 
tially discharge  the  trust  committed  to  us  as  such  conmiis- 
sioners.' 


[Jurat  as  in  form  No.  46.] 


H.  R. 
J.  A.  C. 
L.  E. 


'  As  to  oath  to  be  taken  b}-  conimis-  ing  of  vacancies  created  by  their  death, 

sioners,  see  next  form  Xo.  1227,  and  removal  or  resignation, 

section  2329  of  Code  Civ.  Pro.,  and  see  "^  See  note  2  to  form  No.  122. 

same  section  as  to  removal  of  commis-  ^  As  to  officers  before  whom  the  oath 

sioners  for  incompetency,  etc.,  and  till-  may  Ix;  taken  and  tiling  same,  see  Code 

Civ.  Pro.,  §  2329. 
138 


1098  Forms  Relating  to 

No.  1228. 
Precept  to  Sheriff  to  Summon  Jury. 

(Code  Civ.  Pro.,  §  2330.) 

[Title  of  proceeding.] 
To  the  Sheriff  of  the  County  of : 

We  [naming  coniniissioners],  the  comniissioners  dnly  ap- 
pointed by  a  commission  issued  out  of  tlie Court, 

in  tlie  above  entitled  in'oceeding,  dated ,  18 — ,  pur- 
suant to  the  provisions  of  title  sixth  of  chapter  seventeenth 
of  the  Cod*^  of  Civil  Procedure,   to  inquire,  among  other 

things,  as  to  the  lunacy,  etc.,  of  C.   D.,  of ,  and 

whether  said  C.  D.  is  incompetent  by  reason  of  such  lunacy, 
etc.,  to  manage  himself  [and  his  affairs],  do  hereby  require 
you,  pursuant  to  said  commission,  to  notify,  not  less  than 
tAvelve,  nor  more  than  twenty-four,  indifferent  persons, 
qualified  to  serve  and  not  exempt  from   serving,  as  trial 

jurors  in  the Court,  to  appear  before  us  as  sucli 

commissioners  at,  etc.,  on,  etc.,  to  make  inquiry  as  com- 
manded by  the  said  commission. 

Given  under  our  hands  [and  seals] '  at this  day 

of  -^ ,  18—.' 

[Signatures  (and  seals)  of  commissioners.] 


No.  1229. 
Sheriff's  Return  to  Precept. 

(Code  Civ.  Pro.,  §  2880.) 

I  do  hereby  certify  and  return,  that  I  have  notified  the 
jurors  named  in  the  annexed  list  to  appear  at  the  time  and 
place  mentioned  in  the  annexed  precept,  as  I  am  thereby 
commanded.' 

Dated ,  18—. 

F.  K,  Sheriff  of County, 

List  of  jurors  notified  as  above  mentioned. 

[Names  of  jurors,  with  residences  and  occupations.] 

'  No  seals  seem  to  be  required.  ceedino:s  of  the  ]\xvy  for  failure  of  the 

«  See  Matter  of  Gill   (N.  Y.   Daily  sheriff  to  make  his  return. 

Reg.,  Aug.  1,  1883  [N.  Y.  Super.  Ct.,  »  See  note  2  to  last  form,  No.  1228. 

Sp.  Tm.J)   as  to  setting  aside  the  pro- 


Appointment  of  Committee  of  Lunatic,  etc.    1099 

No.  1230. 
Oath  to  Jurors. 

(Code  Civ.  Pro.,  g  2331.) 

You  do  severally,  solemnly  swear,  well  and  truly  to  make 
inquiry  touching  the  lunacy  [or  idiocy,  or  habitual  drunken- 
ness, etc.,]  of  C.  D.,  and  of  all  such  matters  as  shall  be  given 
you  in  charge  by  virtue  of  a  commission  issued  out  of,  and 
under  the  seal  of,  the  [Supreme]  Court,  and  now  here  to  be 
executed,  and  a  true  inquisition  make  according  to  the  evi- 
dence.  

No.  1231. 
Oath  to  Witnesses. 

(Code  Civ.  Pro.,  ^  2331.) 

You  do  swear  that  the  evidence  you  shall  give,  touching 
the  lunacy,  etc.,  of  C.  D.,  and  as  to  who  are  his  next  of  kin, 
and  the  nature,  extent  and  value  of  his  real  and  jiersonal 
estate,  and  all  such  other  matters  and  things  as  shall  be  re- 
quired of  you,  by  virtue  of  a  commission  issued  out  of  the 
[Supreme]  Court,  to  inquire  into  the  said  lunacy,  etc.,  and 
now  here  to  be  executed,  shall  be  the  truth,  the  whole  truth 
and  nothing  but  the  trutli. 


No   1232. 
Subpcena  for  Witnesses. 

(Code  Civ.  Pro. ,  §  2331 .) 

In  the  name  of  The  People  of  the  State  of  New  YorTc  : 

ToM.  F.,  S.  P.,  etc.: 

By  virtue  of  a  commission  issued  out  of,  and  under  the 
seal  of,  the   [Supreme  Court  of  the  State  of  New  York], 

dated  the day  of ,  18 — ,  and  directed  to 

the  undersigned,  to  inquire  wh»4h(M'  C.  T).,  of  the 

<^)f ,  in  the  county  of ,'  be  a  lunatic,  etc.,  or 

not,  we,  the  undersigned,  do  liPicby  i-(M]iii)v  you,  and  each 
of  you,  ])ersonally  to  be  and  aitpem'  before  us  at  tlie  execu- 
tion of  the  said  commission,  at.  etc.,  on,  etc.,  tlieii  and 
there  to  testify  those  things  which  yon,  or  eitiier  of  you, 


1100  Forms  Relating  to 

know,  toucliing  tlie  lunacy,  etc.,  of  the  said  C.  B.,  and  all 
such  other  matters  as  shall  be  demanded  of  you  by  virtue 
of  the  said  commission.     Hereof  fail  not  at  your  peril. 

Given  under  our  hands  and  seals,  this day  of 

,18-. 

[Signatures  and  seals  of  commissioners.] 


No.  1233. 
Notice  to  Lunatic,  etc.,  of  Execution  of  Commission. 

(Code  Civ.  Pro.,  §  2331.) 

[Title  of  proceeding.] 

To  C.  D.  : 

Take  notice,  that  a  commission  to  inquire  as  to  your 
lunacy,  etc..  issued  out  of  and  under  the  seal  of  the  [Su- 
preme] Court,  and  directed  to  the  undersigned,  as  commis- 
sioners, will  be  executed  at,  etc.,  on,  etc.,  at o'clock 

in  the noon.i 

Dated ,  18—. 

Yours,  etc., 

[Signatures  of  commissioners.] 


No.  1234. 
Notice  to  Produce  Lunatic,  etc. 

(Code  Civ.  Pro.,  g2331.) 

[Title  of  proceeding.  ] 

7b  B.  C.  and  to  all  others  having  in  their  custody  or  power 
the  above  named  C.  D.  : 

The  undersigned,  by  virtue  of  a  commission  issued  out  of 
the  [Supreme]  Court,  to  inquire  as  to  the  lunacy,  etc.,  of 

C.  D.,  of ,  dated  the day  of ,  18—,  do 

hereby  require  yon  to  produce  before  us  the  said  C.  D.,  at 

the  execution  of  said  commission,  at,  etc.,  on,  etc.,  at 

o'clock  in  the noon,  there  to  be  examined  and  in- 
spected by  us,  and  you  are  to  give  him  notice  accordingly. 

Given,  etc.  [as  in  form  No.  1232]. 

[Signatures  and  seals  of  commissioners.] 

. . — __— _ — 1 

'  See  Southern  Tier  Masonic  Relief  v.    College   of  St.  Francis  Xavier  (137 

Assn.  V.  Laudenbach  (.t  N.  Y.  Supp.,  N.  Y.,  327).  Matter  of  Blewitt  (138  N. 

901).    Matter   of  Blewitt   (131  N.    Y.,  Y.,  148;  aff'g  S.  C,  68  Hun,  127),  as  to 

541;  aff'g  S.  C,  61  Hun,  568),  Matter  necessity  for  notice  to  lunatic, 
of  Lowe  (19  State  Rep.,  914),  Gridley 


Appointment  of  Commiitee  of  Lunatic,  etc.   1101 

No.  1235. 
Iiuniisitiou. 

(Code  Civ.  Pro.,  i-  2333.) 

[Title  of  proceeding.] 

All  inquisition  taken  at  tlie  house  of ,  in  the  town 

of  W ,  in  the  county  of  S ,  on  the • 

day  of ,  18—,  before  H.  R.,  J.  A.  C.  and  L.  K,  com- 
missioners, apixnnted  by  virtue  of  a  commission  issued  out 
of  and  under  the  seal  of  the  Supreme  Court  of  the  State  of 

New  York,  bearing  date  the day  of .  18 — , 

to  them,  the  said  commissioners  directed,  to  inquire,  among 
other  things,  of  the  lunacy  [or  idiocy,  or  habitual  drunken- 
ness] of  C.  D.,  of ,  uj)on  the  oaths  of  [insert  names 

of  the  jurors],  good  and  lawful  men  of  the  said  county,  who, 
being  summoned,  sworn  and  charged,  upon  their  oath,  say, 
that  the  said  C.  D.,  at  the  time  of  taking  this  inquisition,  is 
a  lunatic,  and  of  unsound  mind,  and  does  not  enjoy  lucid 
intervals  [or  is  an  idiot,  or  is  an  habitual  drunkard,  etc.],  so 
that  he  is  incompetent  in  consequence  of  such  lunacy,  etc., 
to  manage  himself  or  his  affairs  [and  that  he  has  been  in  the 

same  state  of for  the  space  of  two  years  last  past 

(and  upwards)']  [or  in  case  of  idiocy  from  his  nativity] 
(that  the  said  C  D.  hath,  from  his  infancy,  been  subject  to 
lits,  which  may  have  been  the  occasion  of  his  lunacy,  but 
how  otherwise  he  became  a  lunatic  the  jurors  aforesaid  know 
not,  except  only  by  the  visitation  of  Godj.' 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  fur- 
ther say,  that  whether  tlie  said  C.  D.,  being  in  that  state, 
hath  alienated  any  lands  and  tenements  or  not  the  jurors 
aforesaid  know  not  [or  that  the  said  C.  D.,  being  in  that 

state,  did,  on  or  about  the day  of ,  18 — , 

at ,  by  a  wairanty  deed,  sell,  alien  and  convey  unto 

R.  S.,  of,  etc.,  a  certain  house  and  lot,  situate  in  the  city  of 


'See  Section  2336,  Code  Civ.  Pro.,  Cook  ^6  N.  Y.  Supp.,  720),  Matter  of 

as  1o  limits  of  the  inquiry  in  capes  of  Churcn  (04  How.  Pr.  R.,  '^'^'d).  In  re 

lunacy,  and,  also,  see  Iti  rii  Dern<;lt(27  Klock  (4S(  Hun,  4r)0),  .Ion«!s  v.  Hu(,'lie8 

Hun,  480),  which  holds  that  since  the  (15  Abb.   N.  C.  141),  Viets  v.   Uuion 

adoi)lion  of  that  section  it  is  erroneous,  Nat.    Bank   of  Troy  (101  N.  Y.,  fit)3), 

in  the  case  of  lunacy,  to  include  in  the  Matter  of  Jackson  (;{7  Hun,  .'iOfJ),  Mal- 

iuquisition  a  statement  that  the  incotn-  ter  of  Mason  (51    Hun,  13S),  Matter  of 

I)etency  existed  for  any  definite  time  Sanf(U'd  (.'{'.I  State  Roj).,  80H),  Matter 

piior  thereto.  of  Durui  (37  id.,  802). 

In  cases  of  lunacy,  therefore,  omit  "Omit  this  clause  iu  parftnthcsis  in 

this  clause.  See,  also,  Dominick  v.  caaesofidiocyorhabitualdrunkwnneHH. 
Dominick  (20  Abb.  N.  C,  28G),  In  r>: 


1102  Forms  Relating  to 

Albany,  being,  etc.,  wliich  came  to  him  bj^  descent  from  his 

father,  for  the  nominal  consideration  of dollars, 

but  that  the  actual  amount  received  by  the  said  C.  D.,  for 

said  house  and  lot,  was  only  about dollars,  which 

was  less  than  one-third  of  tlie  value  thereof,  the  same  being 
worth  at  least dollars]. 

And  the  jurors  aforesaid,  on  their  oaths  aforesaid,  do  fur- 
ther say,  that  the  following  lands  and  tenements,  goods  and 
chattels,  yet  remain  to  him,  the  said  C.  D.,  to  wit  [describe 
his  property],  and  that  the  said  lands  and  tenements  now 

belonging  to  said  C.  D.  are  worth  about dollars, 

and  that  the  issues  and  profits  thereof,  by  the  year,  are 

worth  about  the  sum  of dollars  ;  and  further,  that 

the  value  of  the  goods,  chattels  and  personal  estate  of  the 
said  C.  D.  is  about  the  sum  of dollars. 

And  the  jurors  aforesaid  do  further  say,  that  C.  H.,  the 
wife  of  G.  H.,  of,  etc.,  is  the  sister  of  the  said  CD.,  and 
that  she  is,  at  the  time  of  taking  this  inquisition,  of  the  age 
of  thirty  years,  or  thereabouts;  and  that  R.  D.,  of,  etc.,  is 
tlie  brother  of  the  said  C.  D.,  and  is,  at  the  time  of  taking 
this  inquisition,  of  the  ag^^  of  twenty-seven  years,  or  there- 
abouts ;  that  the  said  C.  H.  and  R.  D.  are  the  nearest  heirs 
of  the  said  C.  D.,  and  will  be  entitled  to  his  estate,  in  equal 
proportions,  in  case  of  his  death. 

In  witness  whereof,  as  well  the  said  commissioners  as  the 
jurors  aforesaid,  have  to  this  inquisition  set  their  hands 
[and  seals] '  the  day  and  year  first  above  written. 

[Names  of  commissioners,] 

[Names  of  jurors.] 

No.  1236. 
Notice  of  Application  to  Confirm  Finding  of  Jury. 

(Code  Civ.  Pro.,  §  2336.) 

[Title  of  proceeding.] 

Sir — Take  notice,  that  an  application  will  be  made  to  the 

'  Seals  seem  to  be  no  louger  required  inquisition  sliould  be  annexed  to  the 

by  the  provisions  of  section  2332,  Code  commission  and  filed  with  the  clerk. 
Civ.  Pro.,  which  only  requires  that  the        See  as  to  these  proceedings,  2  Barb, 

commissioners,  or  a  majority  of  them,  Ch.  Pr.  (2d  ed.),  226,  and  the  cases 

and  jurors  should  sign  the  inquisition,  there  cited. 
That  section  further  requires  that  the 


Appointment  of  Committee  of  Lunatic,  etc.    1103 

[Supreme]  Court,  at  a  [Si)ecial]  Term  thereof,  to  be  held  at, 
etc.,  on,  etc.,  at  the  opening  of  the  court,  or  as  soon  there- 
after as  counsel  can  be  heard,  that  the  tlnding  of  the  jury 
upon  the  commission  heretofore  issued  in  the  above  matter 
be  confirmed,  with  costs  of  this  proceeding,  and  for  such 
further  or  otlier  relief  as  the  court  may  think  proper  to 
grant ;  which  motion  will  be  founded  on  the  said  commis- 
sion, the  return  thereto,  and  the  inquisition  taken  under 
such  commission,  and  upon  all  the  other  papers  and  pro- 
ceedings herein. 

M.  F.,  Attorney  for  Petitioner, 
[Office  address.'] 
To  [name  the  parties  opposing  the  ai^iDlication]. 


No.  1287. 
Final  Order  on  Return  of  Commission. 

(Code  Civ.  Pro.,  §2336.) 

[At,  etc.,  as  in  form  No.  80.] 
[Title  of  proceeding.  ] 

On  reading  and  filing  the  inquisition  in  this  matter,  taken 
under  and  by  virtue  of  the  commission  heretofore  issued 
out  of  this  court,  from  which  it  appears  that  the  jury  have 
found  that  the  said  C.  D.  is  a  lunatic  \or  idiot,  or  habitual 
drunkard],  and  that  he  is  incompetent,  by  reason  of  such 
lunacy,  etc.,  of  managing  himself  or  his  affairs,  and  that  he 
is  seized  and  possessed  of  certain  real  [and  x")ersonal]  prop- 
erty in  the  said  inquisition  specified,  and  on  reading  and 
filing  [name  other  motion  papers] : 

Now,  on  motion  of  W.  C.  N.,  of  counsel  for  said  peti- 
tioner, and  after  hearing  F.  M.,  of  counsel  for  said  C.  !>.,  in 
opposition  thereto : 

It  is  hereby  ordered  [*],  that  the  finding  of  the  jury  upon 
the  execution  of  the  said  commission,  as  set  forth  in  the 
said  inquisition,  be  and  the  same  is  liereby  confirmed. 

And  it  is  further  ordered,  that  F.  C.,  Esq.,  of,  etc.,  be 
and  he  is  liereby  a^tpointed  the  committee  of  the  [person 
and  estate]  of  the  said  C.  D.,  upon  liis  giving  a  bond  in  tlic 

'  See  note  2  to  forni  No.  122. 


1104  FoKMs  Relating  to 

penalty  of dollars,  to  be  approved  by  a  judge  [or 

justice]  of  this  court,  and  conditioned  that  he  will,  in  all 
things,  faithfully  dischai'ge  the  trust  reposed  in  him,  and 
obey  all  lawful  directions  of  this  court,  or  of  a  judge  thereof, 
or  of  any  other  court  or  judge,  touching  the  trust ;  and  that 
he  will,  in  all  respects,  render  a  just  and  true  account  of  all 
money  and  other  property  received  by  him,  and  of  the  ap- 
plication thereof,  and  of  his  committeeship,  whenever  he  is 
required  so  to  do  by  a  court  of  competent  jurisdiction. 

And  it  is  further  ordered,  that  upon  the  filing  of  such 
bond,  a  commission  maj"  be  issued  to  such  committee,  under 
the  seal  of  this  court. 

And  it  is  further  ordered,  that  said  committee  pay,  out  of 
the  funds  in  his  hands  [the  sum  of ,  for],  the  neces- 
sary disbursements  of  the  said  petitioner,  and   the  sum  of 

dollars  for  his  costs  and  counsel  fees  [and  that  said 

committee  also  pay  to  P.  F.,  attorney  for ,  who  has 

appeared  herein,  the  sum  of  fifty  dollars,  and  (the  sum  of 
dollars,  for)],  his  disbursements  herein.' 

[Or  as  above  to  [*],  and  from  thence  as  follows  :  That  the 
petition  of  A.  B.  herein,  be  and  the  same  is  hereby  dis- 
missed, wdth  [lifty  dollars  costs  and  disbursements,  to  be 
paid  by  the  said  petitioner  to  the  adverse  party.'] 


No   1238. 
Bond  of  Committee. 

(Code  Civ.  Pro.,  §2337.) 

As  in  form  No.  340  to  [*],  and  from  thence  as  follows : 

'  As  to  the  security  to  be  given  by  v.  Horton  (4   Dem.,  88),   Bechtle  v. 

the  committee,    see   Code   Civ.    Pro.,  Manhattan  R.  Co.  (31  Abb.  N.  C,  483), 

§§  2337,  2595,  2830,  2831.  Ford  v.  Livingston  (140  N.  Y.,  162). 

As  to  compensation    of   committee,  "  Or  the  court  may  direct  a  new  trial 

see    section    2338   (id.),    as   amended  or  hearing,  or  make  such  final  order 

by  chap.  516  of  Laws  of  1S90,  in  effect  as  justice  requires.     (Code  Civ.  Pro., 

September  1,   1890,  and  by  chap.  946  §  2336.) 

of  Laws   of  1895,    in   effect   January  See,  also.  In  re  McAdams  (19  Hun, 

1,  1896,  and  In  re  Colah  (6  Daly,  51),  292),  In  re  Gilbert  (3  Abb.  N.  C,  222), 

decided  under  former  statute  ;  Matter  In  re  Rogers  (9  Abb.  N.  C,  141). 

of  Board  of  Street  Opening  (89  Hun,  As  to  compensation  of  commission- 

525),Matterof  Learned  (12  Misc.,  562).  ers  and  jurors,  see    Code    Civ.  Pro., 

As  to  his  general  powers  and  filling  §  2333,  and  rule  71  of  Gen.  Rules  of 

of  vacancies,   see   section   2339   (id.),  Prac. 

Walrath  v.  Abbott  (75  Hun,  445),  Hill  A  committee  of  the  property  cannot 


Forms  Relating  to 


1104a 


enter  upon  the  execution  of  his  duties 
until  security  is  given  as  prescribed  by 
the  court.  A  committee  of  the  person 
cannot  enter  upon  the  execution  of  his 
duties  until  security  is  given,  if  re- 
quired by  the  court.  (Code  Civ.  Pro., 
§  2337.) 

By  chapter   824  of   Laws  of  1895, 
section  2336(a)  was  added  to  Code  Civ. 


Pi'O  ,  by  which  sections  2325  to  2336 
of  title  6  of  chapter  17  of  Code  Civ. 
Pro.,  both  inclusive,  are  made  inap- 
plicable to  applications  for  the  ap- 
pointment of  a  committee  made  by  it 
on  behalf  of  the  State  to  secure  reim- 
bursement, in  whole  or  in  part,  for 
maintenance  and  support  in  a  State 
institution. 


Appointment  of  Committee  of  Lunatic,  etc.    1105 

That  if  the  above  bounden,  A.  B.,  shall,  and  do  in  all 
things,  faithfully  discharge  the  trust  reposed  in  him  as 
committee  of  the  person  and  estate  of  C.  D.,  a  lunatic,  etc., 

to  which  he  has  been  duly  appointed  by  order  of  tlie 

Court,  dated ,  18 — ,  and  shall  obey  all  lawful  direc- 
tions of  the  said  court,  or  a  judge  thereof,  and  of  any  other 
court  or  judge,  touching  the  said  trust ;  and  shall,  in  all 
respects,  render  a  just  and  true  account  of  all  money  and 
other  property  received  by  him,  and  of  the  application 
thereof,  and  of  his  said  committeeship  whenever  he  is  re- 
quired so  to  do,  by  a  court  of  competent  jurisdiction,  then 
the  x:)receding  obligation  to  be  void,  otherwise  to  remain  in 
full  force  and  virtue.' 


A.  B. 

[L.   S.J 

C.  D. 

[L.  S.] 

E.  F. 

[L.  S.] 

Sealed  and  delivered  in  presence  of 
[Acknowledgment  or  j^i'oof,  affidavit  and  aj)proval  as  in 
forms  Nos.  340  and  538.] 


No.  1239. 
Cominission  to  Committee. 

The  People  of  the  Slate  of  New  York,  to  all  to  whom  these 
[L.  s.]    presents  shall  come,  greeting : 
Whereas,  by  a  certain  inquisition,  taken  at  the  town  of 

,  in  the  county  of ,  on  the day  of 

18 — ,  by  virtue  of  our  commission,  in  that  behalf 


duly  made  and  issued,  to  inquire,  nniong  other  things,  of  the 
lunacy  [or  idiocy,  or  habitual  drunkenness,  etc.]  of  C.  D., 
of,  etc.,  it  is  found,  among  other  things,  that  the  said  C.  D., 
at  the  time  of  taking  said  inquisition,  was  a  lunatic  [not 
having  lucid  intervals]  [or  an  idiot,  or  an  habitual  drunk- 
ard, etc.],  and  was,  by  reason  of  such  lunacy,  etc.,  incom- 
petent to  manage  himself  or  his  affairs,  as  by  the  said 
inquisition  remaining  of  record  in  our  [Supreme]  Court 
may  more  fully  appear,  for  the  care  and  custody  of  whom, 
and  for  the  management  of  his  estate,  it  belongs  to  us,  in 
our  [Supreme]  Court,  to  ])rovide;  and, 

'  See  note  1  to  last  form.  No.  1237,  1887,  making  the  j)roviHionB  of  Bection 
andamendment  to  Hection  '2337  of  Co<l«  251).^),  id.,  appliciiliUi  to  tho  Hecurity  to 
Civ.  Pro.,  >)y  chapter  081  of  Laws  of    be  g-iven  by  tho  couimittee. 

139 


1106  Forms  E-elating  to 

Whereas,  sufficient  security  is  given  to  us  on  behalf  of 
the  said  C.  D.  by  F.  C,  as  is  customary,  and  as  required 
by  hxw  in  such  cases : 

Now,  therefore,  know  ye,  that  we  have  given,  granted 
and  committed,  and  by  these  presents  do  give,  grant  and 
commit  unto  the  said  F.  C,  the  care  and  custody  of  the 
person  [and  the  possession,  care  and  management  of  the 
estate,  as  well  real  as  x)ersonal]  of  the  said  C.  D.,  during 
our  pleasure-,  to  be  signified  in  our  [Supreme]  Court ;  and 
tlie  said  F.  C.  is  hereby  lequired  to  return  and  file  in  the 
office  of  the  clerk  of  our  [Supreme]  Court,  in  the  month  of 

January  in  each  year,  in  the  county  of ,  a  Just  and 

true  inventory  account  and  affidavit,  as  required  by  law,' 
and  that  out  of  the  said  estate,  or  the  rents,  issues  and 
profits  thereof,  he  provide  for  the  maintenance,  sustenance 
and  support  of  the  said  C.  D.  and  his  family. 

And  the  said  F.  C.  is  further  required,  to  abide  by  and 
obey  all  and  every  such  lawful  order  or  orders  in  the  premi- 
ses as  may  hereafter  be  made  in  our  said  [Supreme]  Court, 
or  by  another  court  or  judge,'  and  to  render  a  full  and  just 
account  of  the  execution  of  the  said  trust,  and  of  the  estate, 
property  and  effects  which  shall  have  come  to  his  hands, 
when  and  as  often  as  required  by  our  said  court  or  a  judge 
thereof  [or  by  the  county  judge  of county]/ 

Witness,  etc.  [teste]. 

J.  L.,  Clerk, 
A.  M.,  Attorney  for  Petitioner, 
[Office  address.'] 


No.  1240. 
Complaint  in  Action  by  Committee  of  Lunatic,  etc. 

(Code  Civ.  Pro.,  §  '2340.) 

[Title  of  cause.] 

The  plaintiff  complaining  as  the  committee  of  C.  D.,  a 
lunatic,  etc.,  alleges  that  on  the day  of , 

'  See  sections  2341,  2342  of  Code  Civ.  by  the  court.  (L.  1885,  p.  735.)  That 
Pro.,  and  see  amendment  to  sec.  2341  a  committee  apjiointed  by  a  foreign 
by  ch.  51  of  Laws  of  1894,  aa  to  ac-  court  cannot  be  recognized  here,  see 
counting  by  the  committee  for  money  Bayard  v.  Scanlon  (1  City  Court,  487). 
earned  by  the  services  of  the  incora-  *  See  section 2339,  Code  Civ. Pro.,  and 
petent  person  aa  for  other  money  re-  Walrath  v.  Abbott  (75  Hun,  445,  450). 
ceived  of  such  person.  By  chapter  For  application  by  committee  to 
425  of  Lawa  of  1885,  trust  companies  agree  to  partition  of  real  property  of 
may  be  appointed  committees  of  luna-  lunatic,  etc.,  and  proceedings  there- 
tics  or  idiots  by  court  having  jurisdic-  upon,  see  forms  Nos.  668,  etc. 
tion.  Security  in  such  cases  ia  not  ^  See  section  2342  of  Code  Civ.  Pro, 
necessary,   unless  specially  required  *  See  note  2  to  form  No.  122. 


Appointment  of  Committee  of  Lunatic,  etc.    1107 

18 — ,    ui^on  proceedings  duly  instituted  in  the  [Supreme 

Court  of  this  State],  in  and  for  the  county  of ,  by 

an  inquisition  taken  and  returned,  said  C.  D.  was  found  to 
he  a  hinatic,  etc.,  and  thereupon  this  plaintiff  was  by  an 

order  duly  made  by  said  court,  on  the day  of , 

18 — ,  at ,  ajDpointed  committee  of  the  estate  and 

person  of  the  said  C.  D. 

That  at  the  time  of  the  appointment  of  this  plaintiff  as 
such  committee  the  defendant  was,  as  this  plaintiff  is  in- 
formed and  believes,  indebted  to  the  said  C.  D.  in  the  sum 
of dollars,  for  [allege  nature  and  form  of  indebted- 
ness]. 

The  plaintiff  further  says,  that  the  said  indebtedness  upon 

the  said aforesaid  has  not  been  paid,  nor  any  part 

thereof,  to  the  said  C.  D.,  before  the  appointment  of  the 
said  plaintiff  as  such  committee,  as  he  is  informed  and  be- 
lieves, and  that  the  same  has  not  been  paid  to  this  plaintiff 
since  said  appointment,  and  he  alleges  and  claims  that  bj^ 
virtue  of  the  said  order  of  the  [Supreme]  Court  said  monej^ 
became  due  and  payable  to  this  plaintiff,  as  such  committee, 
and  is  still  due  to  him,  he  being  the  owner  thereof  as  afore- 
said. 

Wherefore  the  plaintiff,  as  such  committee,  demands 
judgment  for,  etc.  [state  relief  claimed],  with  the  costs  of 
this  action.' 

M.  K,  Attorney  for  Plamtiff. 
[Office  address."] 

[Verification  as  in  forms  Nos.  151,  etc.] 


No.  1241. 
Complaint  in  Action  against  Committee. 

[Title  of  cause.] 

[Usual  commencement,  and  statement  of  cause  of  action, 
against  lunatic,  etc.,  after  which,  add  :]  That  altcruMids 
[or  on  the day  of  — ,  18—],  at ,  the 

'  The  f!onimiflee  of  the  person  and  ment.     Tlie  action  must  1k'  lirou^'lit  in 
estate  of  a  lunatic  cannot,  in  liis  own  the  lunatic's  name.     (Hurnct  v.  Hook- 
name,  sue  to  recover  land  belonj^in^' to  stavcr.  10  Iliin,  4H1,) 
the  lunatic  previously  to  his  ajipoiiit-  '  See  note  2  to  form  N<i.  Vii. 


1108  Forms  Relating  to 

said  C.  D.  was,  by  the  [Supreme]  Court,  duly  declared  and 
adjudged  to  be  a  lunatic,  etc. 

That  the  defendant  was  then  and  there,  by  the  said  court, 
duly  ai)pointed  coniinittee  of  the  [person  and]  estate  of  the 
said  C.  D. 

Wlierefore  the  plaintiff  demands  judgment  against  said 
defendant  as  such  committee  for dollars,  and  inter- 
est thereupon  from  the day  of ,  18—,  to  be 

paid  out  of  the  estate  of  the  said  C.  D.,  in  the  hands  of 
the  defendant  as  such  committee,  besides  the  costs  of  this 
action.* 

A.  M.,  Plaintiff' s  Attorney. 

[Office  address.'] 
[Verification  as  in  forms  IS'os.  151,  etc.] 


No.  1242. 

Petition  by  Lunatic,  etc.,  to  Discharge  Committee,  etc., 
ou  Ills  Recovery. 

(Code  Civ.  Pro.,  g  2343.) 

[Title  of  original  proceeding.] 
To  tlie  Supreme  Court  [or  name  other  court] : 

The  petition  of  the  above  named  C.  D.  respectfully  show- 
eth,  that  on  the day  of ,  18—,  a  commis- 
sion was  issued  out  of  this  court  against  your  petitioner, 

and  on  the day  of following  an  inquisition 

was  taken  [or  a  trial  was  had  and  an  order  rendered]  under 
the  same,  whereby  your  petitioner  was  duly  found  to  be  a 
lunatic,  etc.,  and  F.  C,  of ,  was  subsequently  ap- 
pointed by  this  court  committee  of  his  [person  and]  estate. 

That  your  petitioner  having  fully  recovered  his  sound 
state  of  mind  and  understanding  [or  having  been  habitually 
temperate  in  the  use  of  ardent  spirits]  for  twelve  months 

'  A  complaint  against  a  committee  not  stating  a  cause  of  action.     (Hall  v. 

of  an  habitual  dnmkard  which  omits  Tajior,  8  How.  Pr.,  428.) 

to  allege  or  show  by  what  court  or  au-  In  that  case  it  is  doubted  whether  an 

thority  the  debtor  was  declared  to  be  action  at  law  can  be  maintained  against 

an  habitual  drunkard,  and  the  custody  the  committee,  to  recover  a  judgment 

of  his  person  and  estate  awarded  to  upon  a  debt  or  demand  against  the 

the  defendant,  is  bad,  on  demurrer,  for  drunkard. 

»  See  note  2  to  form  No.  122. 


Appointment  of  Committee  of  Lunatic,  etc.    HOD 

past,  as  ai)pears  by  the  affidavits  hereto  annexed,  is  desirous 
that  the  said  committee  should  be  discharged,  and  that  tlie 
property  of  your  petitioner,  remaining  in  tlie  hands  of  the 
said  F.  C.  as  such  committee,  should  be  restored  to  your 
petitioner,  after  deducting  the  legal  charges  and  expenses 
of  the  said  committee. 

Your  petitioner,  therefore,  prays  that  he  may  be  at  liberty 
to  attend  in  open  court,  or  before  a  referee,  for  the  purpose  of 
being  examined  as  to  his  sanity  of  mind  and  competency  of 
understanding  [or  as  to  his  temperate  habits  and  compe- 
tenc}']  for  the  management  of  his  estate  ;  and  that  the  court 
will  make  an  order  discharging  the  said  committee  and  re- 
storing his  property,  and  for  such  other  and  further  relief 
as  may  be  proper. 

Dated ,  18—. 

C.  D. 

[Verification  as  in  form  No.  52.] 

[Annex  afl5davits  as  in  next  form  No.  1243.] 


No.  1243. 
Affidavits  Annexed  to  Petition  for  Discliarge  of  Committee. 

(Code  Civ.  Pro.,  §  2343.) 

[Title  of  original  proceeding.] 
County,  ss.  : 

F.  C,  of ,  being  duly  sworn,  says,  that  he  is  the 

committee  of  C.  D.,  above  named. 

That,  about  a  year  since,  the  said  C.  D.  was  happily  re- 
stored to  a  state  of  convalescence,  and  that  soon  afterwards 
the  said  deponent  resigned  the  management  oL"  liis  a  Hairs 
into  the  hands  of  the  said  C.  D.  and  from  tliar  tiiiic  to  the 
present,  he  has  uniformly  and  constantly  sliown  liimself  to 
be  in  his  perfect  senses,  and  has  now  the  manngciiKMil  of  liis 
own  affairs,  which  he  conducts  with  the  utmost  regularity 
and  with  great  precision. 

And  this  deponent  further  says,  that  from  tiic  time  last 
mentioned  to  the  present  time,  the  said  C.  T).  has,  at  all  times, 
appeared  to  be  perfectly  lalional  and  free  froiii  any  symp- 
tom of  derangement,  and  tliat  at  this  time  d«*ponent  believes 


1110  FoKMs  Relating  to 

liiiii  to  be  of  good  and  perfectly  sound  mind,  memorj'  and 
understanding. 

F.  C. 
[Jurat  as  in  form  No,  46.] 


County,  ss.  : 

C.  C,  of ,  being  duly  sworn,  says,  that  he  is  a 

doctor  of  physic  and  resides  at . 

Tliat  he  knows  the  said  C.  D.  above  named  and  described, 
and  has  known  him  for  upwards  of years. 

That  he  heard  he  was  afflicted  with  insanity  about  two 
years  ago,  but  that  he  was  happily  restored  to  a  convales- 
cent state  about  a  year  since. 

And  deponent  further  says,  that  he  has  seen  the  said  C 
D,  many  times  during  the  past  year,  and  that  he  never  be- 
trayed any  symptom  of  insanity  ;  and  that  lie,  this  depo- 
nent, saw  the  said  C.  T>.  on  the  • day  of , 

instant,  when  this  deponent  did  not  discover  in  him  the 
slightest  symptom  of  insanity  or  unsoundness  of  intellect, 
and  that  this  deponent  verilj^  believes  the  said  C.  D.  to  be 
of  perfectly  sound  mind,  memory  and  understanding.' 

C.  D. 

[Jurat  as  in  form  No.  46.] 


No.  1244. 
Order  Discharging  Committee* 

(Code  Civ.  Pro.,  §  2343.) 

[At,  etc.,  as  in  form  No.  80.] 

[Title  of  original  proceeding.] 

On  reading  and  filing  the  petition  of  C.  D.,  above  named^ 

dated  the day  of ,  18 — ,  setting  forth  that 

he  has  perfectly  recovered  his  sound  state  of  mind  and  un- 
del-standing  [or  has  been  habitually  temperate  in  the  use  ol 
ardent  spirits]  for  twelve  months  past,  and  praying  for  the 
discharge  of  his  committee,  F.  C,  heretofore  appointed  in 
the  above  matter,  and  for  the  restoration  of  his  property, 

■  The  above  affidavits  are  from  3    facts  of  each  case,  and  may  be  adapted 
Barb.   Ch.  Pr.   (2d  ed.),  667.     They    to  the  cas«  of  habitual  drunkenness, 
must  be  conformed,  of  course,  to  the 


Appointment  of  Committee  of  Lunatic,  etc.    1111 

and  on  reading  and  filing  the  affidavits  of  R.  D.  and  C,  C, 

dated  [respectively] ,  18 — ,  etc.,  in  support  of  said 

petition  ;  and  upon  examining  the  said  C.  D.,  in  open  court, 
as  to  his  sanity  of  mind  and  competency  of  understanding 
[or  as  to  his  habits,  etc.] : 

It  is  hereby  ordered,  on  motion  of  H.  C,  counsel  for  said 
C.  D.,  that  the  said  committee,  F.  C,  heretofore  appointed 
herein  of  the  person  [and  estate]  of  said  C.  D.,  be  and  he  is 
hereby  discharged,  and  that  he  restore  to  said  C.  D.  the 
property  remaining  in  his  hands  of  the  said  C.  D.,  after 
deducting  the  legal  charges  and  expenses  of  the  said  com- 
mittee.' 


No.  1245. 

Inventory  and  Account  of  Committee  to  be  Rendered 

Amiiially. 

(Code  Civ.  Pro.,  §2341.) 

SUPREME  COURT  [or  name  other  court]. 


In  the  Matter  of  the  Accounting 
,y  OF  F.  C,  Committee  of  C.  D.,  a  [- 
Lunatic,  etc. 


Inventory. 

A  just  and  true  inventory  of  the  [personal],"  property  of 
C.  D.,  a  lunatic  [etc.],  on  the day  of ,  18 — , 


'Or  the  order  may  provide  for  a 
reference  and  accounting,  if  necessary. 

In  case  of  the  death  of  the  hmatic, 
etc.,  during  his  incompetency,  the 
power  of  the  committee  ceases,  and 
the  property  of  the  decedent  must  be 
administere<l  and  disposed  of,  jis  if  a 
committee  had  not  been  appointed. 
(Code  Civ.  Pro.,  §  2344.)  And  see  Mat- 
ter of  Grant  (83  Hun,  25). 

"By  section  2842  of  Code  Civ  Pro., 
to  which  reference  is  made  in  section 
2341  (id.),  the  inventory  is  only  locon- 
tnin  "a  lull  and  true  stateuKMit  (if  each 
article  ov  item  of  pfrsouaf.  pi-operty  ol', 
eii:."  But  l)y  the  form  of  nllidavit  to 
be  filed  with  the  inventory,  etc.,  under 


section  2843  (id.),  it  is  to  be  stated  that 
it  contains  a  "full  and  true  statement 
of  all  the  property  remaining  in  his 
hands,  etc."  in  the  form  from  which 
the  above  inventory  and  account  are 
suV)stantially  taken,  viz. :  the  appendix 
to  the  rules  of  the  court  of  chancery. 
No.  17,  the  account  contains  a  state- 
ment of  the  real  jiroperty,  as  well  as 
the  personal,  and  it  would  srcm  to  Ix; 
])roper  that  this  should  be  iiRhulud  in 
the  inventory. 

8fe,  also,  Carter  v.  Bnckwith  (128 
N.  v.,  arj).  Matt.-r  of  Hl.-witt  (KM  N. 
Y.,  141),  Same  matti-r  (If)  Stain  K<')'-' 
829),  Matter  of  Owi'iis  (M  id.,  306), 
Matter  of  Urugh  (01  Hun,  l'J3). 


1112  Forms  Relating  to 

made  pursuant  to  law  by  F.  C,  committee  of  said  lunatic 

[etc.] : 

18—. 
Dec.     31.     Balance  of  cash  on  hand  this  day $16  74 

Kobert  Gray's  bond  and  mortgage  on  real  estate,  which 
is  well  secured,  with  interest  at  [six]  per  cent  from 
,18— 850  00 

Two  hundred  and  forty-two  shares  of  stock  in  the 

bank,  worth  at  par  value 1,200  00 

Five  shares  of stock,  par  value  $1,000,  but  actu- 
ally worth  only  about 300  00 

A  bond  of  G.  Lord,  and  mortgage  for  $800  on  unincum- 
bered real  estate  which  is  well  secured,  with  interest 
at  [six]  per  cent,  interest  due  from ,  18 — 800  00 

S.  Drake's  bond  and  mortgage  for  $910  on  uniuciunbered 

real  estate,  with  interest  at  per  cent,  interest 

due  from ,  18— 910  00 

J.  Field's  bond  and  mortgage  for  $700,  well  secured  on 

^  unincumbered  real  estate,  with  interest  from , 

18—,  interest  due  from ,  18— 700  00 

Balance  of  a  legacy  left  to  lunatic  [etc.]  by  John  ]\Iiller, 
deceased 250  00 

[A  cultivated  farm  in  the  town  of  Charlton,  in  the 
county  of  Saratoga,  containing  110  acres  in  good  re- 
pair, under  a  lease  for  one  year  from ,  18 — ,  at 

an  annual  rent  of  $70,  worth  about '] 1,200  00 

[A  dwelling-house  and  lot  of  ground  on  Genesee  street, 
in  the  city  of  Utica;  dimensions  of  lot  200  feet  in 
depth  and  28  feet  in  width,  under  a  lease  for  one  year 
from  May  1,  18 — ,  at  an  annual  rent  of  $180,  payable 
quarter-yearly,  worth  about '] 3,000  00 

Estimated  value  of  [real  and]  personal  estate $8,726  74 


AccoTTNT  Current. 

Tlie  estate  ofC.  D.,  a  lunatic  [etc.'],  toY.  C,  Committee,  18 — . 
18—. 

May       2.  To  ct  sh  paid  M.  Louis,  bill  for  board  and  lodging,  etc.,  $27  33 

June      4.  Dr.  Jones'  bill  for  medical  attendance 9  17 

July       9.  J.  Fox's  bill  for  tuition 13  21 

15.  P.  Storm,  in  full,  for  mortgage  on  farm 5,000  00 

Aug.     19.  Cash  loaned  on  mortgage  to  A.  B 8r!9  08 

11.  S.  Mark's  bill  for  books  and  stationery 17  36- 

Sept.     17.  Collector,  for  taxes  on  dwelling-house  and  lot  in  Utica,  19  23 

29.  G.  Bull's  bill  for  repairing  dwelling-house  in  Utica 43  19 

Oct.      12.  S.  Rider,  repairing  barn  in  town  of  Charlton 62  40 

20.  Postage  on  letter  from  A.  B 25 

Nov.      6.  D.  Gray's  bill  for  merchandise 38  29' 


Appointment  of  Committee  of  Lunatic,  etc.    1113 

Nov.     18.     "Wm.  Lott's  bill  for  board  and  lodging $46  67 

21.     S.  Newland's  bill  for  lumber  used  in  repairing  house 

and  barn 15  44 

Dec.      31,     Loaned  Robert  Gay  on  his  bond  and  mortgage  on  farm,  350  00 
Commissions'  for  receiving  moneys  since  last  annual 
account,  exclusive  of  capital  received  from  previous 
investments  : 

2i  per  cent  on  $1,000  00 25  00 

li  per  cent  on    5,000  00 62  50 

i  per  cent  on       553  98 2  77 

Do  for  moneys  paid  out,  exclusive  of  investments  and 
reinvestments  : 

2i  per  cent  on  $1,000  00 25  00 

IJpercenton    4,000  00 50  00 

ipercenton       637  54 3  18 

Balance  due  the  estate 9  24 

$6,654  30 

Contra. 

18—.  Cr. 

Jan.        1.     Balance  due  as  by  last  annual  account $27  32 

Feb.        2.     Cash  received,  one  quarter's  rent  on  dvrelling-house  in 

Utica 45  00 

March    7.     One  year's  interest  on  G.  Lord's  bond  and  mortgage. ...  56  00 

April    15.     Dividend  on bank  stock 73  50 

May       3.     One  year's  rent  on  farm  in  town  of  Charlton 59  00 

8.     One  quarter's  rent  on  house  in  Utica 45  00 

June     12.     L.  Kern's  note,  principal $73  00 

Interest  1  year,  3  months,  15  days 6  59 

79  59 

July     27.     One  year's  interest  on  S.  Drake's  bond  and  mortgage. . .  63  70 

Aug.      4.     One  quarter's  rent  on  dwelling-house  in  Utica 45  00 

19.     One  j'ear's  interest  on  J.  Field's  bond  and  mortgage. ...  42  00 

19.     Cash  for  timber  sold  J.  Peters 6,000  00 

Sept.     27.     Part  of  the  amount  of  legacy  to  infant  by  John  Miller's 

will 70  00 

Oct.      13.     Amount  of  G.  Lord's  note  given  for  balance  of  last 
year's  interest  on  his  mortgage,  including  interest  on 

note 23  19 

Nov      13.     One  quarter's  rent  on  house  in  Utica 45  00 


$6,654  30 
,  January ,  18 — . 

• County,  ss.  : 

F.  C,  of ,  the  committee  of  the  person  and  prop- 
erty of  the  above  named  C.  T).,  a  lunatic  [etc.],  ])ein<^(luly 

'As  to  compensation  of  committee,  former  statute.  See,  alao,  amend- 
see  Code  Civ.  Pro.,  §  2338,  and  In  r<j  nieiit  by  ch.  516  of  Laws  of  1894,  to 
Colah  (0  Daly,  51),  <le(;i(l(id  und.u-  tlio     Hectioii  2338  Code  Civ.  Pro. 


1114  Forms  Relating  to 

sworn,  cloth  depose  and  say,  that  the  foregoing  inventory 
and  account  contain,  to  the  best  of  deponent's  knowledge 
and  belief,  a  full  and  true  statement  of  all  his  receipts  and 
disbursements  on  account  of  said  C.  D. ;  and  of  all  money 
and  other  personal  property  of  the  said  C.  D.,  which  have 
come  to  this  deponent's  hands,  or  have  been  received  by  any 
other  person  by  his  order  or  authority,  or  for  his  use,  since 
his  api^ointment  [or  since  the  tiling  of  his  last  inventory  and 
account],  and  of  the  value  of  all  such  iH-oj)erty,  together  with 
a  full  and  true  statement  and  account  of  the  manner  in 
•which  he  has  disposed  of  the  same  ;  and  of  all  the  property 
remaining  in  his  hands  at  the  time  of  the  tiling  of  said  in- 
ventory and  account ;  and  a  full  and  true  description  of  tlie 
amount  and  nature  of  each  investment  made  by  liim  since 
his  appointment  [or  since  the  filing  of  his  last  annual  in- 
ventory and  account],  and  that  he  does  not  know  of  any 
error  or  omission  in  the  said  inventory  or  account  to  the 

prejudice  of  the  said  C.  D. 

F.  C. 
[Jurat  as  in  form  No.  46.] 


No.  1246. 

Order  for  Inventory  or  Account,  or  for  Further  Inventory, 
etc.,  by  Committee. 

(Code  Civ.  Pro.,  §  2342.) 
[At,  etc.,  as  in  form  No.  80.] 
[Title  of  proceeding.] 

It  having  appeared  by  the  examination  made  by  me  [or 
which  I  have  caused  to  be  made  by,  etc.]  of  the  accounts 
and  inventories  filed  by  the  committees  of  projierty  of  luna- 
tics, idiots  and  habitual  drunkards  in  the  county  of 

since  the  first  day  of  February,  18 — . 

That  [^^]  F.  C,  of ,  the  committee  of  tlieprojierty  of 

C.  D.,  a  lunatic,  etc.,  appointed  as  prescribed  by  title  sixth 
of  chapter  seventeenth  of  the  Code  of  Civil  Procedure,  has 
omitted  to  file  his  annual  inventory  [or  account,  or  inventory 
and  account,  or  the  affidavit  relating  to  the  inventory  and 
account  filed  by  him]  for  the  year  18 —  : 


Appointment  of  Committee  oe  Lunatic,  etc.   1115 

It  is  hereby  ordered,  that  the  said  F.  C,  as  such  commit- 
tee, file  his  said  annual  account,  etc.,  for  the  year  18 —  [or 

state  other  requirement],  on  or  before  the day  of 

,  IS — ,  in  the clerk's  office  [and,  also,  that 

said  F.  C.  pay  the  expense  of  serving  this  order  upon  him].' 

[0?'  as  above  to  (*),  and  from  thence  as  follows  :  In  my 
opinion  the  interest  of  C.  D.,  a  lunatic  v^^tc),  requires  that 
F.  C,  the  committee  of  said  C.  D.,  appointed  as  prescribed 
in  title  sixth  of  chapter  seventeenth  of  the  Code  of  Civil 
Procedure,  should  render  a  more  full  and  satisfactory  in- 
ventory {o7'  account,  o?-  inventory  and  account)  as  such  com- 
mittee :  It  is  hereby  ordered,  etc.,  that  said  F.  C.  file,  on  or 

before  the day  of ,   18 — ,  in  the  (name 

clerk's  office),  a  more  full  and  satisfactory  account  {or  in- 
ventor}^, or  inventory  and  account,  etc.)  (and,  also,  that  said 
F.  C.  pay,  etc.).i] 

Dated ,  18—. 

A.  O.,  [Presiding]  Judge,  etc' 


TITLE  YII. 


for:ms  relating  to  proceedings  for  the  disposition 
OF  the  real  property  of  an  infant,  lunatic,  idiot 
or  habitual  drunkard. 

(Code  Civ.  Pro.,  Ch.  17,  Tit.  7.) 

No.  1247.     Complaint  in  action  to  compel  infant  or  limatic,  etc.,  trustee  to 
convey. 

1248.  Complaint  in  action  to  compel  specific  performance  of  contract  by 

infant,  etc. 

1249.  Order  for  judgment  that  infant,  etc.,  trustee  convey. 

1250.  Order  for  judgment  for  specific  performance  of  contract  l)y  infant, 

etc. 

1251.  Petition  for  sale  of  real  property  of  infant. 

1252.  Petition  by  committee  of  lunatic,  idiot  or  liabitiial  druid<ard  for 

sale  of  his  real  estate  to  pay  debts. 

1253.  Order  upon  petition  appointing  special  guardian  of  infant. 

1254.  Bond  of  committee  or  special  guardian. 

1255.  Order  to  show  cause  why  committee  should  not  file  bond. 

'  This  direction  may  be  inserted  by  to  be  mnxle,  see  Code  Civ.  Pro.,  §  2342. 

the  judge  in  his  discretion.     (See  Co<le  See,    also,    niinMidineMtH   to   Hi'ction 

Civ.  Pro.,  §2342.)  2;{4'J,    Code  Civ.   Pro.    by  <h.   746  of 

*  As  to  judge  by  whom   the  or<b'i- )^  Lawsof  1805,  tiikingellect  Jun.  1,  IS'.ttj. 


1116  Forms  Relating  to 

No.   1"356.  Order  upon  return  of  order  to  show  cause,  No.  1255. 

1257.  Drder  ai)p()intiuij  rol'crte  to  inquire  into  merits  of  application. 

1258.  lieleree'.s  report. 

1259.  Final  order  upon  referee's  report. 

1260.  Report  of  special  guardian  or  committee  of  agreement  lo  sell. 

1261.  Order  conlirming  guardian's  (etc.)  report,  and  directing  a  con- 

veyance. 

1262.  Another  form  of  order  of  conlirmation,  where  proceeds  are  retained 

by  guardian,  etc. 

1263.  Another  form  of  order  of  conlirmation,  where  the  amount  of  the 

proceeds  exceeds  five  hundred  dollars  and  no  real  security  has 
been  gi^en  by  the  guardian. 

1264.  Deed  by  special  guardian   etc. 

1265.  Release  of  widow's  right  of  dower. 

1266.  Final  report  of  special  guardian. 

1267.  Order  confirming  final  report  of  special  guardian. 

1268.  Consent  of  owner  of  dower  estate,  etc.,  to  receive  a  gross  sum  in 

satisfaction  thereof. 


No.  1247. 

Complaint  in  Action  to  Compel  Infant  or  Lunatic,  etc.. 
Trustee  to  Conyey. 

(Code  Civ.  Pro.,  §  2345,  subd.  1.) 

[Title  of  cause,] 

The  complaint  of  the  above  named  j)laintiff  respectfully 
shows,  that  he  is  entitled  to  a  conveyance  of  the  real  prop- 
erty hereinafter  described  from  F.  P.,  who  holds  said  prop- 
erty as  trustee  [stating  the  nature  of  the  trust,  and  the  facts 
showing  that  the  infant  should  convey  the  premises,  etc.]. 

That  said  F.  P.  is  an  infant  of  the  age  of years 

[or  is  a  lunatic,  etc.],  and  that  he  resides  at [in 

this  State],  and  that  M.  F.,  of ,  is  the  general  guard- 
ian [or  the  committee  of  the  property  (and  person)]  of  said 
P.  P. 

Wherefore  plaintiff  prays  judgment  that  the  said  infant 
[or  lunatic,  etc.],  execute  a  conveyance  of  the  said  real 
property,  which  is  described  as  follows,  to  wit  [describe 
same],  to  the  plaintiff  and  his  heirs  and  assigns  forever,  or 
that  the  said  guardian  of  said  infant  [or  the  said  committee 
of  said  lunatic,  etc.],  or  a  special  guardian  to  be  appointed  in 
this  action  for  said  infant,  etc.,  execute  such  conveyance  in 


Disposition  of  Real  Property  of  Infaist,  etc.  1117 

the  name  of  such  infant,  etc.,  and  for  such  other  and  further 
relief  as  may  be  just,  with  costs  of  this  action.' 

[Signature,  etc.,  as  in  form  No.  969.] 
[Verification  as  in  forms  Nos.  151,  etc.] 


No.  1248. 


Complaint  in  Action  to  Compel  Specific  Performance  of 
Contract  by  Infant,  etc. 

(Code  Civ.  Pro.,  §  2345,  subd.  2.) 

[Title  of  cause.] 

The  complaint  of  the  above  named  plaintiff  respectfully 

shows,  that  on  the day  of ,  18 — ,  G.  H., 

of [now  deceased],  entered  into  a  written  contract 

with  J.  K.,  of  the  same  place,  by  which  the  said  G.  H.,  for 
a  good  and  valuable  consideration  covenanted  and  agreed  to 

convey  to  said  J.  K.,  on  the day  of ,  18 — , 

the  following  described  premises,  to  wit  [describe  same]. 

That  said  J.  K.,  in  consideration  of  the  promises  and 
agreements  on  the  part  of  the  said  G.  H.,  covenanted  and 

agreed  to  pay  to  the  said  G.  H.,  on  the  said day  of 

,  18 — ,  the  sum  of dollars,  and  also  on  that 

da}^  to  execute  and  deliver  to  said  G.  H.  the  bond  of  the 

said  L.  M.,  in  the  penalty  of dollars,  conditioned 

to  pay  to  the  said  G.  H.,  on  the day  of , 

18 — ,  the  sum  of dollars,  M'itli  interest  thereon  semi- 
annually, and  also  his  mortgage  cov^ering  the  premises  afore- 
said, and  conditioned  as  aforesaid,  a  coj^y  of  which  contract 
is  hereto  annexed,  marked  "A"  ;  and  to  which,  for  gi eater 
particularity,  the  plaintiff  refers  as  a  part  of  this  complaint. 

And  the  plaintiff  further  shows,  that  on  the day 

of ,  18 — ,  said  G.  H.  departed  this  life,  intestate 

without   performing  the  said  contract,  and  leaving  three 

'  See  section  2347,  Code  Civ.  Pro.,  maintained  by  the  committee  of  the 

for  judgment  to  be  rendered  in  the  ac-  lunalic  or  other  incompetent  ju-rsou; 

lion.     See,  also,  form  No.  1248.  but,  in  that-  case,  the  court  must  ap- 

For   appointment   of    guardian    ad  jioint  a  .special  guardian  for  the  incom- 

litem  for  infant  defendant,  see  forms  petent   person,   as    rc(|uircd    by   law, 

Kos.  Ill,  112,  etc.  where  an  infant  is  defendant,  and  Iho 

By  section  2346,  Code  Civ.  Pro.,  us  proceedings  are  the  same  as  in  a  liUo 

amended  in  1HH2,  the  action  may  be  action  against  an  infant.  ' 


1118  FoKMS  Relating  to 

adult  and  three  infant  cliildren  him  surviving,  and  that  the 
said  c'hildi'en,  as  tlie  heirs-at-la\v  of  said  G.  H.,  are  now- 
seized  of  the  said  premises  in  fee. 

Tliat  the  names  of  the  said  adult  children  of  said  G.  H, 

are  M.  II.,  F.  H.  and  R.  H.,  and  they  reside  at 

aforesaid. 

That  the  names  of  the  three  infant  children  of  said  G.  H. 

are  I.  H.,  who  is  now  of  the  age  of years  ;  P.  H., 

who  is  now  of  the  age  of years,  and  L.  H.,  who  is 

now  of  the  age  of years  ;  that  sjiid  infant  children 

reside  at and  have  no  general  guardian. 

And  the  plaintifi  further  shows,  that  he  was  duly  ap- 
pointed the  administrator  of  the  goods,  etc.,  of  said  G.  H., 

on  the day  of ,  18 — ,  by  the  surrogate  of 

county,  in  which  county  said  G.  H.  resided  at  the 

time  of  his  death. 

And  the  plaintiff  further  shows,  that  he  is  desirous  that 
a  specific  performance  of  the  said  contract,  on  the  part  of 
said  infants,  should  be  decreed  by  this  court. 

That  the  said  J.  K.  is  also  desirous  that  such  performance 
should  be  decreed,  as  are  also  the  said  adult  children,  as 
will  more  fully  appear  by  the  consent  of  said  J.  K.  and  said 
adult  children,  which  is  hereto  annexed,  marked  "B,"  and 
referred  to  as  a  part  of  this  complaint. 

Wherefore  the  plaintiff  prays  judgment  directing  that 
the  said  infant  children  convey  to  the  said  J.  K.  all  their 
right,  title  and  interest  in  the  said  premises,  which  they 
derived  from  the  said  G.  H.,  as  aforesaid,  according  to  the 
terms  of  the  said  contract,  upon  the  performance  by  the 
said  J.  K.  of  the  covenants  and  agreements  to  be  ^lerformed 
by  him  in  and  by  said  contract,  or  that  the  guardian  ad 
litem  of  said  infants  execute  such,  conveyance  in  the  name 
of  said  infants  upon  the  performance  by  the  said  J.  K.  as 
aforesaid,  and  that  the  court  will  grant  such  further  or 
other  relief  as  may  be  proper.' 

[Signature,  etc.,  as  in  form  No.  969.] 

[Verification  as  in  form  No.  151,  etc.] 

»  See  note  1  to  last  form.  No.  1247. 


Disposition  of  Real  Property  of  Infant,  etc.  lllQ 

Xo.  1249. 
Order  for  Judgmeut  that  lufaut,  etc..  Trustee  Convey. 

(Code  Civ.  Pro..  §2347.) 

As  in  form  No.  1250  to  [*],  and  from  thence  as  follows : 
It  is  liereby  ordered,  that  C.  P.,  the  guardian  ad  litem  of 
the  said  infant  defendant,  execute,  acknowledge  and  deliver 
to  J.  K.  [within  ten  days  after  service  upon  him  of  a  copy 
of  the  judgment  entered  hereupon],  a  good  and  sufficient 
conveyance  of  all  the  estate,  right,  title  and  interest  of  the 
said  infant  as  trustee  as  aforesaid,  in  and  to  the  premises 
described  as  follows  in  said  complaint,  to  wit  [describe 
same]. 

And  it  is  further  ordered,  that  the  said  plaintiff  j)ay  to 

the  said  guardian  ad  litevi dollars  costs  of  this 

action  [or  insert  other  directions  as  to  costs],  and  that  plaiff- 
tiff  have  judgment  accordingly.' 


No.  1250. 

Order  for  Judgment  for  Specific  Performance  of  Contract 
l)y  Infant,  etc. 

(Code  Civ.  Pro.,  §2347.) 

[At,  etc.,  as  in  form  No.  80,] 
[Title  of  cause.] 

On  filing  due  proof  of  i3ersonal  service  of  the  summons 
and  a  copy  of  the  complaint  in  this  action  upon  each  of 
the  defendants,  and  proof  that  no  answer  or  demurrer  has 
been  served,  except  the  usual  general  answer  which  has  been 
put  in  on  behalf  of  the  said  defendants  by  C.  P.,  the  guard- 
ian ad  litem  of  said  defendants,  duly  appointed  herein,  and 
on  filing  proof  of  due  service  of  notice  of  this  api)lication 
for  judgment  upon  said  guardian  ad  litem  [or  upon  F.  R., 
the  attorney  for  said  guardian  ad,  litem\  and  on  motion  of 

,  for  the  plaintiff,  and  after  hearing,  etc.;  and  the 

court  being  satisfied,  after  hearing  the  parties,  that  a  con- 

'  For  form  of  judgment  upon  the  (9  Piiige,  280),  Hunter  v.  Dasbwood  (2 

order,  see  form  No.  469,  and  see  IIiiii-  Kdw.  V\\.,  415),  Swurthout  v.  Burr  (1 

ter  V.  Diishwood  (infra).  IJarb.,  499). 

See,  as  to  costs,  Swiplicn  v.  Fowler 


1120  Forms  Kelating  to 

veysLiice  of  said  premises  described  in  the  complaint  herein 
ought  to  be  made,  as  hereinafter  directed :  [*] 

It  is  herebj^  ordered  and  adjudged,  that  said  C.  P.,  the 
guardian  ad  litem  of  the  said  infants,  defendants  herein, 
execute,  acknowledge  and  deliver,  in  the  name  of  said  in- 
fants, to  J.  K.  [within  ten  days  after  service  upon  him  of 
a  copy  of  the  judgment  entered  hereupon],  a  good  and  suffi- 
cient conveyance  of  all  the  estate,  right,  title  and  interest 
of  the  said  infants  in  and  to  the  premises  described  in  the 
complaint  herein  as  follows,  to  wit  [describe  same],  upon 
his  complying  with  the  terms  and  conditions  to  be  per- 
formed on  his  jDart  under  the  contract  set  forth  in  the  said 
complaint. 

And  it  is  further  ordered,  that,  etc.  [insert  directions  as 
to  costs],  and  that  plaintiff  have  judgment  accordingly.* 


No.  1251. 
Petition  for  Sale  of  Real  Property  of  Infant. 

(Code  Civ.  Pro.,  g§  2348,  2350.) 

To  the  Supreme  Court  of  the  State  of  New  York"  [or  name 
other  court] : 

The  petition  of  A.  B.  and  C.  B.  respectfully  shows,  that 
said  A.  B.  is  an  infant  of  the  age  of  fourteen  years  and 

upwards,  and  became  of  the  age  of years  on  the 

day  of ,  IS — ,  and  resides  at,  etc. ;  that  E.  B.  is 

an  infant  under  the  age  of  fourteen  years,  and  resides  at, 

etc.,  and  became  of  the  age  of years  on  the ■ 

day  of ,  18 — ,  and  that  C.  B.  is  the  mother,  etc., 

of  said  infants  [or  is  the  general  guardian  of  said  infants.] 

That  the  said  infants  are  two  of  the  children  and  heirs-at- 
law  of  W.  B.,  late  of,  etc.,  deceased,  and  that  as  such  heirs- 
at-law  they  are  each  entitled  to  an  undivided  fifth  part, 
subject  to  the  right  of  dower  of  [the  said]  C.  B.,  their 
mother,  of  a  lot  of  land,  situated  in  the  Second  ward  of  the 

'  See  note  1  to  last  lorm,  No.  1248.  or  a  part  thereof,  ii  situated.     (Code 

'  Where  the  application  is  made  to  Civ.  Pro.,  §  2349.)     See,  also,  rule  55 

the  Supi-eme  Coui-t,  the  petition  must  of  Gen.  Rules   ot  Practice,    as   am'd 

be  presented  at  a  term  held  within  the  1887,     taking^     effect    Jan.    1,    1888. 

judicial  district  in  which  the  property,  (Hun's  Court  Rules,  1896,  p.  241.) 


DisposiTiois-  OF  Real  Property  of  Infant,  etc.  1121 

city  of  Troy,  with  a  dwelling-house  and  oiit-houses  thereon, 
and  known  as  lot  No.  160,  Fourth  street ;  also  to  an  undi- 
vided fifth  x^art  of  a  certain  lot,  piece  or  parcel  of  land, 

situate,  lying  and  being  in  the  town  of ,  in  the 

county  of ,  consisting  of  about  three  hundred  acres 

of  land,  and  bounded  and  described  as  follows  [insert  de- 
scription]. 

That  the  said  house  and  lot  in  the  city  of  Troy  are  worth 

the  sura  of dollars,  and  produce  an  annual   income 

of dollars  ;  that  the  said  lot  or  parcel  of  land  lying 

in  the  town  of is  worth  about dollars,  but  is 

entirely  unproductive,  being  wild  and  unimproved. 

That  the  brothers  of  said  infants,  R.  B.,  J.  B.  and  S.  B., 
own  the  other  three-fifths  of  the  said  real  estate  above  men- 
tioned and  threaten  to  commence  proceedings  against  said 
infants  for  the  partition  thereof. 

And  your  petitioners  further  show,  that  the  said  infants 
do  not  own  any  other  real  estate  than  that  above  described, 
and  that  they  have  no  personal  property  of  any  kind  or  to 
any  amount  whatever,  except  their  necessary  wearing  ap- 
parel [and  except,  etc.],  and  no  income,  except  as  above 
stated  [if  they  have  bad  any  personal  property  whicli  lias 
been  disposed  of,  show  wliat  disposition  has  been  made  of 
it,  and  if  there  are  any  demands  against  the  infants'  estate, 
state  them  ;  see  section  2;350,  Code  Civil  Procedure].^ 

And  your  petitioners  further  show,  that  [the  said]  C.  B., 
the  mother  of  said  infants,  as  the  widow  of  the  said  W.  B., 
deceased,  the  father  of  the  said  infants,  is  entitled  to  dower 
in  the  said  real  estate,  and  that  she  has  no  means  of  support 
for  herself  or  her  said  infant  children,  excex)t  what  she  and 
they  may  acquire  })y  their  own  exertions,  and  that  it  is 
necessary  that  the  said  j^tremises,  or  some  part  thereof, 
should  be  sold  {c>r  mortgaged,  or  leased]  and  the  proceeds, 
or  some  part  thereof,  be  applied  towards  the  necessary  edu- 
cation and  maintenance  of  said  infants  ;  and  ihc  said  C.  B. 
[hereby]  offers  to  unite  in  tlie  sale  of"  said  ])r('niisf's,  and  to 
release  her  right  of  dower  therein,  upon  coiKlitioii  that  one- 
third  part  of  ihe  jnirchase  money  Ix^  securely  invested  and 
the  annual  interest  th(;i-eoL"  ])e  ])aid  to  her  (hiring  iier 
natural  life;  or  that  a  gross  sum  l)e  ])aid   to  hei-  in  lieu 

'  By  an  am«n<lment  to  section  23.'j0  infant  or  inconipotent  pciHon  in  ono  or 

of  Code  Civ.  Pro.  by  Lawn  of  1803,  ch.  more  i)arc<ilH  of  land  in  onl.T  to  avoid 

311,  this  clauHe  need  not  be  inHerb-d  an  action  of  i)artition  on  tho  i>art  of 

where  the  apjilication  iH  niaib;  for  the  hiH    co-tenanlH.     In    the    cane    iibovo 

Bale  of   an   undivided  interent  of   th.;  Hjiecilied.     by    th--    name    ani.Midni.-nt 


1122  Forms  Relating  to 

thereof,  equal  in  value  to  her  lii'e  estate  therein,  to  be  ascer- 
taiued  on  the  princii)le  of  life  annuities.' 

That  no  previous  application  for  the  sale  of  said  real 
estate,  or  any  part  thereof,  has  been  nuidc  [excepting 
(state  any  previous  application,  the  time  thereof  and  what 
disposition  has  been  made  of  the  same)J.'^ 

Your  petitioners  therefore  pray,  that  the  said  real  estate 
ma}'  be  sold  [or  leased,  or  mortgaged]  by  and  under  the 
direction  of  this  court,  and  that  W.  R.,  of  the  city  of  Tro}', 
counselor-at-law,  who  is  the  uncle  of  [or  who  is  in  no  way 
related  to]  tlie  said  infants,  nuiy  be  appointed  their  special 
guaidian,  for  tlie  purpose  of  selling,  etc.,  the  interests  od: 

said  infants  in  the  said  real  estate,  and  E.  F.,  of , 

and  G.  H.,  of ,  are  proposed  as  sureties  for  the  said 

W.  R.  as  such  special  guardian,  to  join  with  him  in  a  bond 
in  such  penalty  and  upon  such  conditions  as  may  be  re- 
quii-ed,  and  that  your  petitioners  may  have  such  ociier  and 
further  relief  as  may  be  ]3roper/ 

Dated ,  18—. 

A.  B. 
C.  D. 

[Verification  as  in  form  No.  52.] 

Consent  of  Guardian. 
I  hereby  consent  to  be  ai)pointed  the  special  guardian  of 
the  infants  named  in  the  foregoing  jDetition. 

Dated ,  18—.  W.  R. 

the  peliaon  must  state  the  particulars  Andrews  (13  Civ.  Pro.  R.,  413),  Matter 

and   value   of    the   real    property  in  of  Hynes  (51  Hun,  340  ;  aff'd, -without 

respect  to  which  a.  sale  is  desired.  opinion,    113   N.  Y.,   650),    Matter  of 

*  See  as  to  consent  of  owner  of  dower  Matthews  (27  Hun,  254;  aff'd  S.  C, 
estate,  etc.,  to  receive  gross  sum,  etc.,  without  opinion,  90  N.  Y.,  68S),  Kelly 
in  satisfaction  thereof,  section  2362,  v.Pitcher  (18  State  Rep., 3G4),  Buderus 
Code  Civ.  Pro.;  and  for  form  of  such  v.  Immen  (20  Week.  Dig.,  8S),  Arm- 
consent,  see  form  No.  12G8;  and  see  strong-  v.  Wernstein  (6  N.  Y.  Supp., 
amendments  to  section  2361,  Code  Civ.  148),  Behrens  v.  Rodenburgh  (1  City 
Pro.,  by  ch.  237  of  Laws  of  1890,  and  Court,  93).  Dodge  v.  St.  John  (96 
ch.  639  of  1893.  N.  Y.,  260),  Ryder  v.  Wood  (29  State 

"  See  rule  55  of  Gen.  Rules  of  Prac,  Reji.,  62),    Weinstock  v.  Levison   (26 

and  see  generally,  as  to  these  jiroceed-  Abb.  N.  C.,  244),  Field  v.  Dessar  (131 

ings,  rules  55  to  60,  id.  N.  Y.,  184),  Matter  of  Stafford  (3  Misc., 

'  See  Battt-11  v.  Torrey  (65   N.  Y.,  lOG),  Flyun  v.  Lynch  {'23  Civ.  Pro.  R., 

294),  In  re  Valentine  (72  N.  Y..  1S4;  36^). 

rev'g   S.  C,  10  Hun,   83),    Midler  v.  This  petition  may  be  adapted  to  the 

Struppman  (6  Abb.  N.  C,  343),  as  to  case  of  the  sale  of  the  real  property  of 

jurisdiction  ;  as  to  interest  which  may  a  lunatic,  etc.     In  that  case  the  appli- 

be  sold,  etc.,  see  Code  Civ.  Pro.,  §  2348,  cation   should   be  made  by  the  com- 

Jenkins  v.  Fahey  (73  N.  Y.,  355  ;  rev'g  mittee  of  the  property,  or  by  a  relative 

S.  C,  11  Hun,  351),  In  re  Haight  (14  or    other   person.     (Code    Civ.    Pro., 

Hun,  176),  Matter  of  Dodge  (105  N.  Y.,  §  2349.)     It  can  only  be  granted  when 

585  ;  rev'g  S.  C,  40  Hun.  443),  Aldrich  a  committee  of  his  property  has  been 

V.    Funk    (48  Hun.    367),  Ellwood  v.  appointed.     (Id.,  §  2351.) 

Northrup  (106  N.  Y.,  172),   Hardie  v.  See,  also,  for  petition  by  committee 


Disposition  of  Real  Estate  of  Infant,  etc.    1123 

No.  1252. 

Petition    by  Committee  of  Luuatic,  Idiot  or   Habitual 
Drunkard  for  Sale  of  His  Real  Estate  to  pay  Debts. 

(Code  Civ.  Pro.,  §§  2348,  2350.) 

To  fhe  Supreme  Court  of  the  State  of  New  York  [or  name 
other  courf]  : 

The  petition  of  F.  C,  the  committee  of  the  person  and 
estate  of  CD.,  a  hmatic  [etc.],  respectfully  shows,  that  by 

an  order  of  the Court,  made  on  the day 

of ,  18 — ,  your  petitioner  was  apjDointed  such  com- 
mittee. 

That,  as  such  committee,  he  has  duly  made  out  [and  veri- 
fied] an  inventory  of  the  estate  of  the  said  C.  D.,  real  and 
personal,  and  has  therein  stated  the  value  thereof,  and  the 
amount  of  the  rents  and  profits  of  the  said  real  estate, 
and  of  rhe  debts  owinp:  hj  the  said  lunatic  [etc.],  a  copy  of 
which  is  hereto  annexed. 

That  it  apx)ears,  from  said  inventory,  that  the  said  real 
estate  consists  of  a  house  and  lot,  situate  in   the  city  of 

Albany,  being  No.  — ,  etc.,  of  the  value  of  about 

dollars,  and  which  rents  for  the  sum  of dollars 

annually. 

That  the  value  of  the  said  personal  estate,  at  the  time  of 

your  petitioner's  appointment,  was  about — ■  dollars, 

but  that  your  petitioner  has  been  obliged  to  sell  the  follow- 
ing articles,  namely  [specify  them],  and  apply  the  proceeds 
to  the  payment  of  debts  owing  by  the  said  lunatic,  to  wit : 
a  debt  of dollars,  due  to  AV.  S.  for  medical  iit  tend- 
ance, and  a  debt  of dollars,  due  to  T.  11.  for  board- 
ing said  lunatic,  and  the  sum  of dollars  for  the 

costs  of  the  proceeding  for  your  petitioner's  aj^pointment 
to  his  attorney. 

Your  petitioner  further  shoAvs,  that  the  following  is  an 
acfX)unt  of  the  debts  and  demands  now  existing  agniust  the 
estate  of  the  said  lunatic  [etc],  viz.  [set  forth  a  list  of  the 
debts  with  their  amounts]. 

for  sale,  etc.,  to  pay  debts  of  the  luna-  of  Laws  of  l.Si)3,  ho  a.s  ti>  perinil  Hale  or 

tic,  etc.,  form  No.  1252.  release  ol  im-hoate  rig-lu  of  dower  in 

The  petition   under  Hubdivi.sion  ;{  of  real    pi-operly    and     olh«!r     releJiHew. 

section   2:i48,   Code  Civ.   Pro.,  will  Im  ALso  aniendinent  to  section  23.')'.l,  C'odo 

subHtantiully  like  the  coniplaintH  foi-ni.s  Civ.    I'i'o.,    i)y  chap.    .11i3  of  LawH   of 

Nos.    1247,    1248.     See,   also,   annMid-  1.S'.I2,  and  to  section  2;jr)(),  iil.,  by  cliap. 

ment  to  Hection  2:^48  by  chai).   237  of  Hll  of  1H«3. 

Laws  of    IS'.H),  HO   as   to   ixMinit    nale,  For  complaint  in  acrtioii  for  forcdofl- 

etc.,  of  infant's  real  estate,  to  i)reHerve  ure  of  a  niortK"(,'e    given    by  iufantH, 

or  improve  the  same,  and  by  chap.  153^  see  form  No.  61)8. 


1124  Forms  Relating  to 

That  the  aggregate  amount  of  such  debts  and  demands 

is dollars,  as  near  as  can  be  ascertained,  for  the 

payment  of  wiiicli,  in  addition  to  the  expenses  of  support- 
ing such  lunatic,  the  income  of  his  real  and  personal  estate, 

which  amounts  to dollars,  is  wholly  inadequate, 

and  that  even  his  whole  personal  estate  would  not  be  sufli- 
cient  to  discharge  the  same,  were  it  sold  for  that  purjoose. 

Your  petitioner,  therefore,  prays  that,  by  an  order  of  this 
court,  he  may  be  authorized  and  empowered  to  mortgage  or 
sell  so  much  of  the  real  estate  of  the  said  lunatic  as  may 
be  necessary  for  the  payment  of  his  debts,  and  for  such 
other  relief  as  may  be  necessary.* 

Dated ,  18—. 


[Verification  as  in  form  No.  52.] 


F.  C. 


No.  1253. 

Order  upon  Petition  Appointing  Special  Guardian  of 

Infant. 

(Code  Civ.  Pro.,  §  2352.) 

[At,  etc.,  as  in  form  No.  80.] 

[Title  of  proceeding.] 

On  reading  and  filing  the  petition,  dated ,  18 — ^ 

of  A.  B.,  of  ,  an  infant  over  the  age  of  fourteen 

years,  to  wit :  of  the  age  of years  and  upwards, 

and  of  E.  B.,  of ,  an  infant  under  the  age  of  four- 
teen years,  to  wit:  of  the  age  of years  and  up- 
wards, and  of  C.  B.,  the  mother,  etc.  [or  general  guardian], 
of  said  infants,  in  their  behalf,  praying  for  the  sale  of  cer- 
tain real  estate  of  the  said  infants  therein  described,  under 


'  The  filing  of  a  petition,  showing  violation  of  some  express  provisions 

the  existence  of  a  valid  outstanding  of  that  statute. 

debt  against  the  insane  person,  which  So  held,  under  chapter  446  of  1874, 

requires  the  disposition  of  his  real  es-  the  provisions  of  which  are  contained 

tate  to  enable  his  committee  to  pay,  in  this  title.     (Agricultural  Ins.  Co.  v. 

vests  the  court  with  jurisdiction  of  Barnard,  96  N.  Y.,  526.) 

the  subject  matter,  and  such  jurisdic-  Upon  such  application  the  commit- 

tion  is  not  divested  by  subsequent  ir-  tee  represents  the  lunatic,  and  is  not 

regularities  unless  steps  were  taken  in  required  to  give  him  notice  of  the  pro- 
ceedings.    (Id.) 


Disposition  of  Real  PROPERTr  of  Infant,  etc.  1125 

the  direction  of  this  conrt,  and  for  the  appointment  of  W. 
R.,  of ,  as  special  guardian,  for  the  purpose  of  con- 
ducting the  said  sale  ;  and  on  reading  and  filing  the  consent 
of  said  AY.  R.,  annexed  to  said  petition,  to  become  such 
special  guardian  : 

It  is  hereby  ordered,  that  said  W.  R.  be  and  he  is  hereby- 
appointed  the  special  guardian  of  said  infants,  with  respect 
to  the  proceedings  herein,  uj^on  his  filing  with  the  county 

clerk  of county  \or  name  other  clerk]  a  bond  in 

form  as  required  by  law,  to  [each  of  said  infants],  with  two 

sufficient  sureties,  in  the  penalty  of dollars,  each 

of  which  sureties  shall  be  worth  the  j^enalty  of  the  bond 
over  and  above  all  the  debts  and  liabilities  which  he  owes 
or  has  incurred,  and  exclusive  of  property  exempt  by  law 
from  levy  and  sale  under  an  execution,  which  bond  shall  be 
duly  acknowledged,  or  i:)roved,  and  certified,  and  accom- 
panied Avith  affidavits  of  justification  made  by  the  sureties, 
and  approved  as  required  by  law,  conditioned  for  the  faith- 
ful discharge  of  liis  trust,  for  the  paying  over  and  investing 
of,  and  accounting  for,  all  money  received  by  him  in  this 
proceeding,  according  to  the  direction  of  any  court  having 
authority  to  give  directions  in  the  premises,  and  for  the 
observance  of  the  directions  of  the  court  in  relation  to  the 
said  trust.' 

No.  1254. 
Bond  of  Committee  or  Special  Guardian. 

(Code  Civ.  Pro.,  ^i;  SSol,  2353.) 

As  in  form  No.  340  to  [*],  and  from  thence  as  follows : 
That,  wliereas,  the  above  named  A.  B.  has  been  duly  ap- 
pointed the  special  guardian  of  D.  B.  [and  E  B.],  infants 
\or  an  infant]  \or  of  C.  D.,  a  lunatic,  etc.],  in  a  j)roceeding 
for  the  sale  [etc.],  of  certain  real  property  of  said  infants 
[or  infant,  etc.]  [or,  whereas,  the  alcove  named  A.  B.,  as  com- 
mittee of  C.  T).,  a  lunatic,  has  made  a])])]i('ati()ii  I'oi-  the  sale 
(or  mortgaging,  or  leasing)  of  cei-tain  \iK\\  ])i'o])(M-ty  of  said 

C.  1).;  or,  whereas,  apiilication  has  been  made  by 

for  the  sale  of  certain  real  estate  of  C.  D..  a  lunatic,  etc., 

'See  Code  Civ.  Pro.,  §§  2Sr)l,  2:^r)'J,  of  an  infant  without  ^'.ivin/,'   Heciiiity 

and  (ien.  RuIbh  of  Prat;.,  No.  67,  and  may  Im  uppninled  Hiuth  H|i<'i;ial  ffunrd- 

see  amendment  to  Haid  nection  1'AWl,  hy  iaii,  and  in  Hncli  ciiHe  llm  couil,  in  lhi» 

chap.    2tJ8    of   LawH    of   1893,    adding'  order  of  appoinlmeni,    may   iliHpenHH 

thereUi  aHfollowH:  Any  tniHt  company  with  the  ^,'•ivin^r  utid  lilinjf  of  any  huch 

aiithoi-ized  V)y  the  laws  of  thiH  Htate  to  liond.     Hct>,   iil«o,   niniMHtiiMMit   to  hcc- 

act  a3  general  g-uardian  of  the  ewtate  tion  2351,  iti.,  l)y  <;hap.  G3J  of  Jbyj. 


1126  Forms  Relating  to 

of  whose  person  and  estate  the  above  named  A.  B.  is  the 
committee.] : 

Now,  if  the  said  A.  B.  shall,  and  do,  faithfully  dis- 
charge his  trust  upon  such  application  as  such  special 
guardian  [or  committee],  and  shall  pay  over  and  invest  and 
account  for  all  moneys  received  by  him  in  the  said  special 
proceeding,  according  to  the  direction  of  any  court  having 
authoritj^  to  give  directions  in  the  pi'emises,  and  shall  ob- 
serve the  directions  of  the  court  in  relation  to  the  said 
trust,  then  the  preceding  obligation  to  be  void,  otherwise  to 
remain  in  full  force  and  virtue.' 

[Signatures  and  seals  as  in  form  No.  340. J 

Sealed  and  delivered  in  presence  of . 

[Acknowledgment  or  proof,  justification  and  approval  as 
informs  Nos.  340,  538. J 


No.  1255. 
Order  to  Show  Cause  why  Committee  Should  not  File  Bond. 

(Code  Civ.  Pro.,  §  2351.) 

[At,  etc.,  as  in  form  No.  80.] 
[Title  of  proceeding.  ] 

Upon  reading  and  filing  the  petition  of  A.  M.,  in  the 

above  entitled  proceeding,  dated ,  18 — ,  piaying  for 

the  sale,  etc.,  of  certain  real  estate  of  C.  D.,  a  lunatic  [etc.], 
and  on  motion  of  F.  P.,  counsel  for  said  petitioner: 

It  is  hereby  ordered,  that  F.  C,  the  committee  of  the  per- 
son and  estate  of  said  C.  D.,  show  cause  at,  etc.,  on,  etc., 

'  The  omission  of  a  penalty  in  such  cuted  before  the  order  appointing  him 

a  bond  docs  not  affect  its  validity;  its  was  made,  is  valid  and  sufficient,  if 

only  effect  is  to  make  the  liability  com-  delivered,    approved    and   tiled   after- 

mensurate  with  tlie  condition.     (Dodge  wards.     So  held  in  reference  to  pro- 

7.  St.  John,  96  N.  Y. ,  200.)  ceedings  imder  former  rules  and  stat- 

See,  also,  Agricultxiral  Ins.  Co.  v.  ntes    before    the   Code  of  Civ.    Pro. 

Barnard  (96  N.  Y  ,  525;  rev'g  S.   C,  (Center  v.  Finch,  22  Ilun,  146.) 
i6  Hun,  302),  as  to  bond  in  proceed-        Upon  a  breach  of  the  condition  of 

ings  under  chapter  446  of  Laws  of  the  bond,  the  court  must  direct  it  to 

1874,  to  mortgage  the  real  estate  of  a  ])c  prosecuted  for  the  benefit  of  the 

lunatic,  etc.,  for  payment  of  his  debts.  i)erson   injured.     (Code   Civ.    Pro.,  § 

A  bond    of    tbe    proposed    special  23r):?.)      As  to  effect  of  failure  to  file 

guardian  and  his  surety,  although  exe-  bond   until   after   the   making   of  au 


Disposition  of  Real  Property  of  Infant,  etc.  1127 

why  lie  should  not  file  a  bond  to ,  in  such  j^roceed- 

ing,  in  the  amount  of dollars,  with  two  sufficient 

sureties,  conditioned  for  the  faithful  discharge  of  his  trust ; 
for  the  paying  over  and  investing  of,  and  accounting  for,  all 
monej^  received  b}'  him  in  said  proceeding,  acciording  to  the 
direction  of  any  court  having  authority  to  give  directions 
in  the  premises,  and  for  the  observance  of  the  directions  of 
the  court  in  relation  to  the  said  trust. 

And  it  is  further  ordered,  that  a  copy  of  this  order,  and 
of  said  petition,  be  served  personally  on  said  F.  C,  on  or 
before  the day  of ,  18 — .* 


]No.  1256. 
Order  upon  Return  of  Order  to  Show  Cause  (No.  1255). 

(Code  Civ.  Pro.,  §2351.) 

[At,  etc.,  as  in  form  No.  80.] 
[Title  of  proceeding.] 

On  the  return  of  the  order  to  show  cause,  made  herein  on 
the day  of ,  18 — ,  why  F.  C,  the  commit- 
tee of  C.  D.,  a  lunatic,  etc.,  should  not  file  a  bond  herein  as 
such  committee,  in  form  and  amount,  and  with  sureties,  as 
provided  by  said  order,  with  proof  of  due  personal  service 
of  a  copy  of  said  order  to  show  cause  and  of  said  petition 

on  said  F.  C,  as  thereby  required,  and  on  motion  of , 

counsel  for  the  petitioner  herein,  and  after  hearing,  etc., 
and  on  reading  [name  any  opposing  papers]  [or  no  one  ap- 
jjearing  to  oppose]  ;  and  it  appearing  that  there  is  probable 
cause  for  such  application  : 

It  is  hereby  ordered,  that  said  F.  C,  as  such  committee, 
be  and  he  is  hereby  required  to  file  a  bond  [describing  it  as 

in  last  form]  within days  from  the  date  of  this 

order  [or  from  the  time  of  the  service  upon  liim  of  a  copy  oT 
this  order],  or,  that  in  case  of  his  faihi-re  so  to  do,  that  K. 
P.,  of ,  be  and  he  is  lierel)y  appointed  the  special 


order    of    refer«nce.     see     Kelly    v.         'See  note  1  to  form  No.  102,  as  to 

Pitcher  (18  State  Rep.,  3G4.)  onlei-H  to  Hhow  cauHe  ;  also  Mnirehi  v. 

See,  alHii,  I3«hriiif,'.4  v.   Ro(leiil)iirf,'h  Haltzmnii  (66  How.  Pr.,  20r)),  ami  form 

(1  City  Court,  93),  Ryder  v.  Wood  (29  No.  325. 
State  Rep.,  62). 


1128  Forms  Relating  to 

guardian  of  said  C.  D.,  with  respect  to  the  proceedings 
herein,  upon  his  filing  his  bond  [describing  bond  as  in  form 
No.  1255].' 

No.  1267. 

Order  Appointing  Referee  to  Inquire  into  Merits  of  the 

Application. 

(Code  Civ.  Pro.,  §  2354.) 

[At,  etc.,  as  in  form- No.  80.] 
[Title  of  proceeding.  ] 

The  petition  of  A.  B  and  E.  B.,  infants,  and  of  C.  B.,  the 
mother  [or  general  guardian]  of  said  infants,  on  their  behalf, 

dated ,  18 — ,  having  been  duly  presented  and  Hied  in 

the  above  entitled  jDroceeding  on  the day  of , 

18 — ,  and  the  court  having  made  an  order  thereupon  on  the 

said day  of ,  18 — ,  appointing  W.  R.  special 

guardian  of  said  infants,  with  respect  to  the  proceedings 
herein,  uT)on  his  filing  with  the  [name  clerk]  his  bond  as 
therein  mentioned,  and  it  having  appeared  by,  etc.,  that 
said  bond  has  been  duly  filed  with  the  said  clerk  on  the 
day  of — ,  18 —  : 

Now,  ujion  the  application  of ,  attorney  for  said 

petitioners,  it  is  hereby  ordered,   that  I.  L.,  of , 

counselor-at-law,  be  and  he  is  hereby  appointed  as  referee 
to  inquire  into  the  merits  of  the  said  application,  and  that 
said  referee  examine  into  the  truth  of  the  allegations  of  the 
said  j)etition,  hear  the  allegations  and  proofs  of  all  persons 
interested  in  the  application,  and  report  his  opinion  there- 
upon, together  with  the  testimony,  with  all  convenient 
speed.* 

'  The  same  order  may  be  made,  ap-  stantial,    and    cannot    be    dispensed 

pointing  a  special  guardian,  if  the  com-  with;  an  omission  to  refer  constitutes 

mittee   elects  that  such  appointment  a  fatal  defect  in   jiroceedinga   under 

shall    be    made.      (Code    Civ.    Pro.,  the  statute.     (In  the  matter  of  Valen- 

§  23.')1  )     See,  also,  amendment  to  sec-  tine,  72  N.  Y.,  184;    rev'g  S.  C,  10 

lion  2351  by  chap.  268  of  Laws  of  1893.  Hun.    83.)      See,    also,    Ellwood     v. 

^  The  requirement  of  the  statute  that  Noithrup  (106  N.  Y.,  ]  72),  Aldrich  v. 

the  petition  shall  be  referred  is  sub-  Funk  (48  Hun,  367). 


Disposition  of  Real  Property  of  Infant,  etc.  1129 

No.  1258. 
Referee's  Report. 

(Code  Civ.  Pro.,  g  2354.) 

[Title  of  proceeding.] 

I,  I.  J.,  appointed  referee  in  the  above  entitled  proceed- 
ing, by  an  order  of  the  court  therein  dated 18 — ,  do 

hereby  report : 

That  having  taken  the  oath  as  required  by  law,  which 
oath  is  hereto  annexed  marked  "A,"'  and  having  been 
attended  by  the  counsel  for  the  petitioners  and  by  the 
special  guardian  of  the  said  infants  [etc.],  I  have  examined 
into  the  truth  of  the  allegations  of  the  j^etition  herein,  and 
have  heard  the  proofs  and  allegations  of  all  persons  inter- 
e^ed  in  the  property,  or  otherwise  interested  in  the  appli- 
cation. 

That,  in  my  opinion,  a  sale  [or  lease,  or  mortgage]  of  the 
premises  described  in  the  said  petition  [or  state  portion 
thereof]  would  be  beneficial  to  the  said  infants  [or  lunatic, 
«tc.],  and  the  reasons  therefor  are  as  follows  [here  state 
same]. 

And  I  further  report  that  the  said  infants  [etc.]  are  [or  is] 
in  absolute  need  of  having  the  whole  [or  state  portion]  of 
the  proceeds  of  such  sale  [lease  or  mortgage]  for  the  pay- 
ment of  [his]  debts  [or  for  the  maintenance  and  necessary 
educastion  of  himself  (and  his  famil}')],  in  addition  to  what 
he  might  earn  by  his  own  exertions  [or  state  that  said 
infants  (etc.)  are  not  in  absolute  need  of  any  portion  of  the 
proceeds,  etc.,  as  above]. 

And  I  further  report,  that  the  said  j)remises  are  worth,  in 

the  aggregate,  the  sum  of dollars  ;  that  the  house 

and  lot,  situated  in  the  city  of  Troy,  are  Avortli 

dollars,  and  that  the  lot  of  land,  situated  in  the  town  of 
,  in  the  county  of ,  is  wortli doHars. 

And  I  further  report,  tliat,  in  my  opinion,  it  will  be  for 
the  interests  of  the  said  infants  [etc.]  to  have  the  said  real 
estate  sold  [or  mortgaged,  or  leased],  upon  the  following 
terms  and  conditions : 

That  so  much  of  the  proceeds  of  their  shares  or  interests 

•  For  form  of  oatU  of  refercR^see  form  No.  439,  and  see  note  1  to  that  form. 
142 


1130  Forms  Relating  to 

in  the  same  as  may  be  necessary  to  i^ay  their  respective 
]M-()iH)ifions  of  the  gross  value  of  the  dower  right  of  [their 
niotherj  C.  B.  therein,  and  the  costs  of  these  proceedings, 
be  paid  by  the  purchaser  on  the  delivery  of  the  deed,  and 
thnt  the  payment  of  the  residue  of  the  purchase  money  of 
the  interests  of  said  [infants]  be  secured  by  the  bond  of  the 
purchaser,  and  a  mortgage  upon  the  said  premises,  to  be 

given  to  the  [county  treasurer  of county  in  trust 

for   the  said  (infants)J,'   conditioned   to   pay  the   interest 

thereon  semi-annually,  at  the  rate  of per  cent  per 

annum,  and  the  principal  in  tw^o  equal  installments,  one  of 
which  shall  be  paid  on  the  day  when  the  said  A.  B.  shall 
arrive  at  the  age  of  twentj^-one  years,  and  the  other  on  the 
day  when  the  said  E.  B.  shall  arrive  at  full  age  [or  insert 
other  provisions  as  may  be  required]. 

And  I  fuither  report,  that  C.  B.  [the  mother  of  said 
infants  and  who],  is  entitled  to  her  dower  in  the  premises, 
is  willing  to  join  in  the  said  sale  [or  mortgage,  or  lease], 
and  that  I  have  ascertained  the  value  of  her  life  estate  in 
the  premises  on  the  principle  of  life  annuities,  and  that  the 
present  value  of  the  same  is dollars. 

That  I  have  annexed  hereto  the  testimony  taken  by  me 
upon  said  reference,  marked  "B"  [state  any  further  facts 
that  may  be  necessary  and  proper]. 

All  of  which  is  respectfully  submitted." 

Dated ,  18—. 

I.  J.,  Referee. 


No.  1259. 
Final  Order  upon  Referee's  Report. 

(Code  Civ.  Pro.,  §2355.) 

[At,  etc.,  as  in  form  No.  80.] 

[Title  of  proceeding.] 

Upon  iiling  the  report  of  I.  J.,  referee,  appointed  herein 
by  order  of  this  court,  which  report  is  dated ,  18 — , 

'  See  rule  58  of  Gen.  Rules  of  Prac.  effect    Jan.    1,    188S.      (Hun's    Court 

"As  to  contents  of  this   report,  see  Rules.  LS9tj,  pp.   241,  etc.)     See,  also, 

section  2354,   Code  Civ.  Pro.,  and  rule  amemlnients   to  §  2354   by  ch.  268  of 

56  of  Gen.  Rules   of  Prac. ;  and   see,  1893  and  note  2,  p.  1128,  to  form  No. 

generally,    as    to    these   proceedings,  1257.    As  to  dower  interest,  see  note  1, 

rules  55  to  60,  id.,  as  am'd  1887,  taking  p.  1122,  to  form  1251. 


Disposition  of  Real  Property  of  Infant,  etc.  113:1 

from  which  it  appears  satisfactorily  to  this  court  that  the 
interests  of  the  said  infants  [etc.]  will  be  promoted  by  a 
sale  [or  lease,  or  mortgage]  of  [their  shares  in]  the  real 
estate  mentioned  in  the  petition  in  this  matter,  for  the 
reasons  stated  in  said  report,  on  motion  of  W.  N.,  of  coun- 
sel for  the  said  petitioners  : 

It  is  ordered,  that  the  said  report  be  and  the  same  is 
hereby  confirmed. 

And  it  is  further  ordered,  that  W.  R.,  the  [special  guard- 
ian] of  said  [infants]  be  and  he  is  hereby  authorized  and 

empowered  and  directed  to  sell  [or  let  for  a  term  of 

years,  or  mortgage]  all  the  right,  title  and  interest  of  the 
said  infants,  in  and  to  said  real  estate  [or  describe  part 
thereof],  at  a  price  [or  for  an  amount]  not  less  than  the 
sum  specified  by  said  referee  in  his  report  as  the  [Talue] 
thereof,  and  upon  the  terms  and  conditions  therein  specified. 

[Insert  further  direciions  of  the  court  as  to  time,  manner 
and  conditions  of  sale  and  conveyance.] 

But  it  is  hereby  further  ordered,  that  before  such  sale  [or 
lease,  or  mortgage]  be  made  pursuant  hereto  the  said  special 
guardian  [or  committee]  enter  into  an  agreement  therefor, 
subject  to  the  approval  of  this  court,  and  report  the  said 
agreement  to  this  court  under  oath. 


]^o.  1260. 

Report  of  Special  Guardian  or  Committee  of  Agreement 

to  Sell. 

(Code  Civ.  Pro.,  §2356.) 

[Title  of  proceeding.] 

To  the  [name  court]  : 

In  pursuance  of  an  order  of  this  court,  made  in  the  above 
entitled  matter,  on  the day  of ,  18 — ,  au- 
thorizing and  empowering  and  directing  me,  as  the  [special 
guardian  of  the  infants]  therein  named,  to  contract  for  the 
sale  and  convf-yance  [etc.]  of  all  the  right,  title  and  interest 
of  the  said  [infants],  in  and  to  the  real  estate  mentioned  and 
described  in  the  p<*titioii  in  this  matter,  dated  the 


1132  Forms  Relating  to 

day  of ,  18 — ,  and  to  report,  upon  oath,  the  terms 

and  conditions  of  the  agreement  made  bj'  me  with  the 
[purchaser  or  i,)urcluisers]  before  the  execution  of  any  deed 
or  instrument  of  conveyance  [etc.]  of  the  said  premises : 

I,  W.  R.,  the  said  special  guardian  [or  committee],  do  cer- 
tify and  reix)rt,  that  I  have  entered  into  an  agreement,  sub- 
ject to  the  approbation  of  this  court,  with  B.  P.  J.,  of,  etc., 
for  the  sale  [etc.]  of  all  the  right,  title  and  interest  of  the 
said  [infants],  in  and  to  the  said  real  estate,  upon  the  fol- 
lowing terms  and  conditions,  viz.:  the  said  B.  P.  J.  to  pay 

therefor  the  sum  of  dollars,  as  follows :  so  much 

of  the  said  purchase  money  as  may  be  necessary  to  pay  the 
respective  portions  of  said  infants  of  the  gross  value  of  the 
right  of  dower  of  their  mother,  C.  B.,  therein,  and  the  costs 
of  these  proceedings,  on  the  delivery  of  the  deed,  and  the 
payment  of  the  residue  of  said  purchase  money  to  be 
secured  by  a  bond  of  the  purchaser  and  a  mortgage  upon 
the  said  premises,  to  be  given  bj'  him  to  the  county  treas- 
urer of  the  count}^  of ,  in  trust  for  the  said  infants, 

conditioned  to  pay  the  interest   thereon  semi-annually,  at 

the  rate  of per  cent  per  annum,  and  the  princi[)al 

in  two  equal  installments,  one  of  which  shall  be  paid  on  the 
day  when  the  said  A.  B.  shall  arrive  at  the  age  of  twenty- 
one  years,  and  the  other  on  the  day  when  the  said  E.  B. 
shall  arrive  at  that  age  [or  state  other  terms  of  sale,  etc., 
as  may  be  necessary].' 

That  the  gross  value  of  the  right  of  dower  of  the  said 

C.  B.  in  the  said  i)remises  is dollars,  and  the  costs  of 

these  proceedings  amount  to dollars,^  after  deduct- 
ing which  sums  from  the  amount  of  the  purchase  money,  as 

aforesaid,  there  will  remain  the  sum  of dollars  due 

to  the  said  [infants]  collectivelj^,  to  be  secured  as  aforesaid, 
or dollars  to  each. 

And  I  further  report  that  the  above  are  the  best  terms 
upon  wliich  I  could  sell  the  said  property,  and  that,  in  my 
opinion,  the  premises  are  an  ample  security  for  the  pay- 

*The  agreement  may  be  annexed  to  (26  Abb.  N.  C,  244)  ;  §  2356  Code  Civ. 

report   aud   referred    to.     See,   also,  Pro.,  as  amended  by  ch.  639  of  1893. 

Hardie  v.  Andrews  (13   Civ.  Pro.  R.,  *See  as  to  amount  of  costs,  rule  58 

41:?),  Buderus   v.  Timmen   (20  Week,  of  Gen.  Rules  of  Prac,  and  Matter  of 

Dig.,  88).  Armstrong  v.  Wernstein  (6  Morrell  (4  Paige.  44),  Matter  of  Mat- 

N.  Y.  Supp.,   148),  Aidrich   v.   Funk  thews  (29  Hun,  254,  aflPd  without  op., 

(48  Hun,  367),  "Weinstock  v.  Levison  90  N.  Y.,  688). 


Disposition  of  E-eal  Property  of  Ixfant,  etc.  1133 

ment  of  the  balance  of  the  purchase  money  not  paid  down 
and  the  interest. 

All  of  which  is  respectfully  submitted. 

Dated ,  18—. 

W.  R.,  Special  Guardian  [etc.]. 
County,  ss.  : 

W.  R.,  the  [special  guardian]  named  in  the  foregoing 
report,  being  duly  sworn,  says,  that  he  has  read  the  above 
report,  to  which  he  has  subscribed  his  name,  and  knows 
the  contents  thereof,  and  that  the  matters  therein  stated  are 

true. 

W.  R. 
[Jurat  as  in  form  No.  46.] 


No.  1261. 

Order  Confirniiug  Guardian's  (etc.)  Report  and  Directing 

a  Conveyance. 

(Code  Civ.  Pro.,  g§  2356,  2361.) 

[At,  etc.,  as  in  form  No.  80.] 
[Title  of  proceeding.] 

On  reading  and  filing  the  report  of  W,  R.,  the  special 
guardian  [etc.]  of  the  above  named  [infants],  made  in  pur- 
suance of  the  order  of  this  court,  dated  the day  of 

,  18 — ,  stating  that  in  pursuance  of  said  order  he  had 

entered  into  an  agreement,  subject  to  the  api^robation  of  this 
court,  with  B.  P.  J.,  for  the  [sale]  of  all  the  right,  title  and 
interest  of  the  said  [infants],  in  and  to  the  real  estate  men- 
tioned in  said  order,  upon  the  terms  and  conditions  speci- 
fied in  the  said  report,  on  motion  of  W.  N.,  of  counsel  for 
the  said  petitioners : 

It  is  ordered,  that  the  said  report,  and  the  agreement 
therein  mentioned,  be  and  the  same  are  hereby  ratified  and 
confirmed. 

And  it  is  further  ordered,  th[it  the  said  special  guardian 
[etc.]  do  execute,  acknowledge  and  deliver  to  the  said  B.  P. 
J.,  a  good  and  sufficient  [conveyance]  of  all  the  estate,  riglit, 
title  and  interest  of  the  s;iid  [infants]  in  and  to  the  premises 
aforesaid,  upon  his  complying  with  the  terms  tind  condi- 


1134  Forms  Relating  to 

tions  upon  which,  by  the  said  agreement,  the  [deed]  was  to 
be  delivered. 

And  it  is  further  ordered,  [*]  that  out  of  the  purchase 
money  paid  by  the  said  B.  P.  J.,  upon  the  delivery  of  the 
deed,  the  said  special  guardian  [etc.]  do  pay  the  sum  of 

dollars  to  C.  B.  for  her  dower  right  in  the  shares 

of  said  infants  in  the  premises,  and  take  her  receipt  and 
release  in  full  discharge  thereof,  executed  and  acknowl- 
edged as  required  by  law,  she  having  filed  her  consent,  as 
provided  by  section  2362  of  the  Code  of  Civil  Procedure,  to 
accept  such  gross  sum  in  satisfaction  thereof  [or  give  direc- 
tions for  the  investment,  as  provided  in  that  section,  accord- 
ing to  the  consent];  and  that  he  pay  to  the  attorney  for 
the  petitioner  the  costs  of  these  proceedings,  to  wit :  the 
sum  of dollars '  [o?-  to  be  taxed]. 

And  it  is  further  ordered,  that  the  moneys  which  shall  be 

received  by  the  county  treasurer  of county,  from 

time  to  time,  for  interest  upon  the  liond  and  mortgage  given 
by  the  purchaser,  be  paid  over  by  him  to  the  said  [special 
guardian]  to  be  applied  by  him  to  the  maintenance  and  edu- 
cation of  the  said  infants,  and  that  said  [guardian]  make  a 
report,  under  oath,  of  the  disiwsition  and  investment  of  the 
proceeds  of  such  sale,  etc.  [or  make  other  provisions  as  may 
be  necessary]. 

No.  1262. 

Another  form  of  Order  of  Confirmation,  where  Proceeds 
are  Retained  by  Special  Guardian  (etc.). 

(Code  Civ.  Pro.,  §g  2356,  2361.) 

As  in  form  No,  1261  to  [^^],  and  from  thence  as  follows : 
That  so  much  of  the  proceeds  of  said  [sale]  as  shall  be  neces- 
sary be  applied  to  the  payment  of  the  expenses  of  said  sale, 
together  with  the  costs  of  these  proceedings,  to  wit :  the 

'See  note  2  to  form  No.  1260.     See,  by  ch.  639  of  Laws  of  1893,  and  Wal- 

also,  as  to  directions  of  final  oi-der  as  rath  v.  Abbott  (75  Hun,  452) 

to   dower,  etc.,  where   a   consent   has  See,  also,  as  to   provisions   of  final 

been  filed  to  accept  a  gross  sum,  sec-  order  where  the  interest  of  the  infant, 

tion  2362,  Code  Civ.  Pro.     For  form  of  etc.,  consists  of  a  right  of  dower,  or  an 

consent,  see  form  No  1268.     See,  also,  estate  for  life  or  years,  section  2363, 

amendment  to  section  2361   Code  Civ.  Code  Civ.  Pro. 

Pro.,  as  to  provisions  of  oider  in  case  As  to  payment  of  debts  of  infanta, 

of  release  of  inchoate  right  of  dower,  etc.,  see  section  2364  (id.). 


Disposition  of  Real  Propekty  of  Infant,  etc.  1185 

sum  of dollars  [or  to  be  taxed];'  and  of  the  re- 
mainder of  such  proceeds  so  mucli  as  may  be  immediately 
necessary  be  applied  to  the  maintenance  and  education  of 
the  said  infants  [etc.],  and  that  the  residue  thereof  be  kept 
or  put  out  at  interest,  or  invested  [on  bond  and  mortgage] 
for  the  benefit  of  the  said  [infants]  ;  and  that  said  [special 
guardian]  do  make  a  return  to  the  court,  in  writing  and  upon 
oath,  of  the  investment  and  disposition  of  the  proceeds  as 
soon  as  may  be/  

JN'o.  1263. 

Another  form  of  Order  of  Coufiriiiation,  where  the  Amount 
of  tlie  Proceeds  exceed  Five  Hundred  Dollars  and  no 
Real  Security  has  been  Given  by  the  Guardian. 

(Code  Civ.  Pro.,  §g  2356,  2361.) 
As  in  form  I^o.  1261  to  [''■],  and  from  thence  as  follows . 
That  the  said  [special  guardian]  bring  the  share  or  portion 
of  the  consideration  money  received  by  him  upon  said  sale 
wdiich  belongs  to  said  infants,  after  paying  thereout  to  the 
attorney  of  the  said  infants  the  costs  of  these  proceedings,. 

to  wit :  the  sum  of dollars  [or  to  be  taxed],  into 

court,  and  deposit  the  same  with  the  county  treasurei  of 

county,  to  be  invested  by  him  for  the  use  of  said 

infants  [or  the  court  may  direct  the  investment  of  the  pro- 
ceeds by  the  special  guardian  for  the  use  of  the  infant].' 


No.  1264. 
Deed  by  Spechil  Guardian,  etc. 

(Code  Civ.  Pro.,  §2356.) 

This  indenture,  made  the day  of ,  in  the 

year  18 — ,  between  A.  B.  and  E.  B.,  infants  under  the  age 
of  twenty-one  years,  ])y  AV.  R.,  their  special  guardian,  of 
the  first  part,  and  B.  P.  J.,  of ,  of  the  second  part: 

'  See  note  2  to  form  No.  1260.  ed  to  the  case  where  the  proceeds  are 

'  In  the  rase  contemphited  in  form  retiiincd   hy  the  fruardian,   he  having' 

No.  1261,  tli(!  proceed.s  an;  not  retained  f;iven  real  sccnrity,  or  the  i)n)cccds  not 

by  the  f:;uardian,  etc. ,  the  wliole  amount  exceeding  $500. 

of  the  cash  payment  lu-ing  applied  to  ^  Sec  rules  58  and  Hit  of  (Jen.  Rule* 

extinguish  tlie  chiim  of  dower,  and  to  of  Practice;;  and  see  yiiies  v.  blilcs  (1 

pay  the  costs,  form  No.  1262,  is  adajit-  Laus.,  90). 


1136  Forms  Relating  to 

Whereas,  a  petition  was  heretofore  presented  to  the  Su- 
preme Court  of  the  State  of  New  York  [or  name  other 
<30urtJ  by  the  said  A.  B.,  who  is  an  infant  over  the  age  of 
fourteen  years,  and  by  C.  B.,  the  motlier,  etc.  [or  general 
guardian],  of  the  said  E.  B.,  who  is  an  infant  under  the  age 
of  fourteen  years,  and  of  said  A.  B.,  on  their  behalf,  pray- 
ing for  a  sale  of  the  right,  title  and  interest  of  the  said 
infants  in  the  real  estate  therein  mentioned  ;  and. 

Whereas,  such  i)roceedings  were  afterwards  had  in  the  said 
court,  upon  the  said  petition,  that,  by  an  order  of  said  court, 

made  on  tlie day  of ,  18 — ,  the  said  W.  R. 

was  appointed  the  special  guardian  of  the  said  infants  with 
respect  to  said  proceedings,  upon  his  giving  the  security 
therein  required ;  and, 

Whereas,  such  security,  duly  ax)proved  and  acknowl- 
edged, was  subsequently  filed  bj"  the  said  guardian  in  the 
j)rox^er  office ;  and, 

Whereas,  by  another  order  of  the  said  court,  made  on 

the day  of ,  18 — ,  the  said  W.  R.  was 

authorized  and  empowered  to  contract  for  the  sale  and  con- 
veyance of  the  right,  title  and  interests  of  the  said  infants 
in  said  real  estate,  at  a  price  not  less  than  that  specified  in 
the  report  of  I.  J.,  the  referee  referred  to  in  said  order, 
to  wit :  the  i  eferee  appointed  by  the  court  pursuant  to  stat- 
ute, to  inquire  into  the  merits  of  said  application,  and  upon 
the  terms  and  conditions  mentioned  therein  and  in  said 
referee' s  report ;  and, 

Whereas,  in  pursuance  of  the  last  mentioned  order  the 
said  special  guardian  afterwards  made  his  report,  dated  the 

day  of ,  18 — ,  to  the  said  court,  stating 

that  he  had  entered  into  an  agreement,  subject  to  the  ap- 
l)roval  of  the  said  court,  with  B.  P.  J.,  of,  etc.,  for  the  sale 
of  all  the  right,  title  and  interests  of  the  said  infants  in  and 
to  the  said  real  estate  upon  the  terms  and  conditions  therein 
mentioned  ;  and, 

Whereas,  by  another  order  of  the  said  court,  made  on  the 

day  of ,  18 — ,  it  was  ordered,  that  the  said 

report  of  such  special  guardian,  and  the  agreement  therein 
mentioned,  be  and  the  same  were  thereby  ratified  and  con- 
firmed ;  and, 


Disposition  of  Real  Property  of  Infant,  etc.  1137 

Whereas,  it  was  further  ordered  by  the  said  court,  in  and 
by  the  said  last  mentioned  order,  that  the  said  special  guard- 
ian should  execute,  acknowledge  and  deliver  to  the  said  B. 
P.  J.,  a  good  and  sufficient  conveyance  of  all  the  estate, 
right,  title  and  interest  of  the  said  infants  in  and  to  the  said 
l^remises,  upon  his  comj)lying  with  the  terms  and  conditions 
upon  which,  by  the  said  agreement,  such  deed  was  to  be 
delivered ;  and. 

Whereas,  the  said  B.  P.  J.,  the  purchaser  aforesaid,  has 
comjDlied  with  the  terms  and  conditions  of  the  said  agree- 
ment : 

j^ow,  therefore,  this  indenture  witnesseth,  that  the  said 
party  of  the  first  part,  special  guardian  as  aforesaid,  by 
virtue  of  the  power  and  authority  conferred  upon  him  by 
the  several  orders  above  mentioned,  and  in  pursuance  of  the 
statute  in  such  case  made  and  provided,  for  and  in  consid- 
eration of  the  sum  of dollars  to  him  in  hand  paid, 

at  or  before  the  ensealing  and  delivery  of  these  presents,  by 
the  said  party  of  the  second  part,  the  receipt  whereof  is 
hereby  confessed  and  acknowledged,  hath  granted,  bar- 
gained, sold,  remised,  released  and  conveyed,  and  by  these 
presents  doth  grant,  bargain,  sell,  remise,  release  and  con- 
vey, unto  the  said  party  of  the  second  part,  his  heirs  and 
assigns  forever,  all  the  right,  title  and  interest  of  the  said 
infants,  A.  B.  and  E.  B.,  of,  in  and  to  [*]  all  that  certain 
[insert  descrijDtion],  to  have  and  to  hold  the  said  j^remises, 
and  every  part  and  parcel  thereof,  with  the  appurtenances, 
to  the  said  B.  P.  J.,  his  heirs  and  assigns,  to  his  and  their 
only  proper  use,  benefit  and  behoof  forever. 

In  witness  whereof,  the  said  parties  of  the  first  part,  by 
their  special  guardian  aforesaid,  have  hereunto  set  their 
hands  and  seals,  the  day  and  year  first  above  written.' 

A.  B.     [L.  s.] 

E.  B.     [L.  s.] 

[By  W.  R.,  tlieir  special  Guardian.'] 

Sealed  and  delivered  in  presence  of  L.  M. 

[Acknowledgment  by  guardian  as  in  form  No.  340,  or 
proof  as  in  form  No.  .538.] 

'  The  guardian  should  .strictly  pur-  conveyance.     He  cannot  convey  the 

suf!  Uie  order  of  tlie  court  in  respect  premises,  except  pursuant  to  such  or- 

to  the  manner  of  the  execution  of  the  der.     (Hyatt  v.   Seeley,  UN.  Y.,  62; 
143 


1138  Forms  F.klating  to 

No.  1265. 
Release  of  Widow's  Right  of  Dower. 

(Code  Civ.  Pro.,  J5  2362.) 

Know  all  men  hy  these  presents :  That  I,  C.  B.,  of ^ 

widow  of  F.  B.,  late  of ,  deceased,  for  and  in  con- 

sid»"ration  of  the  sum  of dollars,  to  me  in  hand 

paid  by  B.  J.  P.,  of ,  the  receipt  of  wliich  is  hereby- 
confessed  and  acknowledged,  have  granted,  bargained,  sold, 
remised,  released  and  quitclaimed,  and  by  these  presents  do 
grant,  bargain,  sell,  reraise,  release  and  quitclaim  to  the  said 
B.  J.  P.,  his  heirs  and  assigns,  all  that  certain  piece  or  par- 
cel of  land  [insert  description],  to  have  and  to  hold  the  said 
premises,  with  the  appurtenances,  to  the  said  B.  J.  P.,  his 
Jieirs  and  assigns,  to  and  for  the  use  and  behoof  of  him, 
Jiis  heirs  and  assigns  forever. 

And  the  said  C.  B.  for  herself,  her  heirs,  executors  and 
administi-ators,  doth  covenant  and  agree,  to  and  with  the 
said  B.  J.  P.,  his  heirs  and  assigns,  that  she  hath  not  done 
any  act  whereby  the  said  above  described  premises  now  are, 
or  at  any  time  have  been,  incumbered  or  affected  in  any 
manner  whatever. 

In  witness  whereof,  the  said  C.  B.  has  hereunto  set  her 

hand  and  seal,  this day  of ,  18 — . 

C.  B.     [L.  s.] 

Sealed  and  delivered  in  presence  of . 

[Acknowledgment  as  in  form  No.  340,  or  proof  as  in  form 
No.  638.] 

No.  1266. 
Final  Report  of  Guardian. 

(Code  Civ.  Pro.,  §  2361.) 

[Title  of  proceeding.] 

To  the  [name  courV^ : 

I,  W.  R.,  the  special  guardian  of  the  above  named  in- 
fants, having  been  directed  by  an  order  of  this  court,  dated 

Battell  V.  Burrill,  10  Abb.  [N.  S.],  103;  535  ;  afiTg-  S.  C,  9   Hun,  493),  Matter 

O'Reilly  v.  Kinj,%  2  Robt.,  593  ;  S.  C,  of  Ilurlbut  (43  Hun,  311,  313). 

^S  How.,  409).  It  is  no  objection  to  the  conveyance 
See,  also,  Cole  v.  Gourlay  (79  N.  Y., 


Disposition  of  Real  Property  of  Infant,  etc.  1139 

the day  of ,  18 — ,  to  execute,  acknowledge 

and  deliver,  in  the  name  of  said  infants,  to  B.  J.  P.,  of 

,  a  conveyance  of  the  interest  of  said  infants  in  the 

real  estate  mentioned  and  described  in  the  petition  in  these 

proceedings,  for  a  sum  not  less  than — -  dollars,  do 

hereby  certify  and  report,  that  I  have  executed  such  con- 
veyance as  in  and  by  said  order  I  was  directed,  such  pur- 
ohaser  having  complied  with  the  terms  and  conditions  of 
said  sale. 

That  I  have  received  from  such  purchaser,  on  account  of 
the  i3urchase  money,  the  sum  of dollars. 

That  out  of  said  sum  last  mentioned,  I  have  paid  to  the 

attorney  for  the  petitioners  the  sum  of dollars  for  the 

costs  and  expenses  of  these  proceedings,  including  referee's 
fees,  and dollars  to  C.  B.  to  satisfy  her  dower  in- 
terest in  said  premises  ;  and  that  I  have  taken  from  the  said 
C  B.  a  release  and  discharge  in  full  of  her  said  dower  inter- 
est, and  that  I  have  disposed  of  the  residue  of  said  sum  in 
the  manner  directed  by  this  court,  as  follows,  to  wit  [state 
manner]. 

That  I  have  taken  from  the  attorney  of  the  petitioners 
his  receipt  for  such  costs  and  exj^enses,  which  [together 
with  the  discharge  of  C.  B.]  is  hereto  annexed. 

I  further  report  that  I  have  taken  from  the  said  B.  J.  P. 
a  bond  and  mortgage  to  the  said  infants  [or  state  how  funds 
have  been  disposed  of  J. 

That  I  have  invested  the  residue  of  the  said  proceeds, 

amounting  to  the  sum  of dollars,  at  an  interest  of 

[six]  per  centum  per  annum,  jiayable  semi-annually,  on 
good  security  by  bond  and  mortgage,  to  wit :  the  bond 
of  M.  J.,  of ,  and  a  mortgage  executed  and  acknowl- 
edged by  him  and  his  wife  upon  unincumbered  real  estate 

in  the  city  of ,  worth  double  the  amount  of  such 

proceeds,  which  mortgage  I  have  caused  to  be  recoided  in 


that  it  is  executed  by  the  gTiardian  con-  or  an   interest  therein,  shall   not   be 

jointlywith  adult  owners.   (O'Reilly  v.  sold,  leaaed  or  morttjag'ed,  see  Hectioii 

King,  supra.)  2357,  Code  Civ.  Pro. 

See  as  to  effect  of  conveyance,  sec-  See,  al.so,  amendment  to  section  2361 

tion  23.')8,  Code  Civ.  Pro.,  as  amended  Code  Civ.  Pro.,  by  ch.  639  of  Laws  of 

by  ch.  639  of  Lawn  of  1893.  1893. 

Ah  to  cases  in  which  real   i5r()])erty. 


1140  FoKMs  Rej.ating  to 

the  office  of  the  clerk  of  the  county  of [or  state 

other  method  of  investment  pursuant  to  the  order]. 

All  of  which  is  respectfully  submitted. 

Dated ,  iti — . 

W.  R. 

[Verification  as  in  form  No.  1260.] 


No.  1267. 
Order  Confirming  Final  Report  of  Special  Guardian. 

[At,  etc.,  as  in  form  No.  80.] 
[Title  of  j)roceeding.  ] 

On  reading  and  filing  the  final  report  of  W.  R. ,  the  special 
guardian  of  A.  B.  and  M.  B.,  infants,  of  the  execution  and 
deliver}^  of  a  deed  of  the  real  estate  of  said  infants,  hereto- 
fore sold  by  him,  bearing  date ,  18 — ,  and  on  motion 

of  G.  C,  attorney  for  the  said  special  guardian  : 

Ordered,  That  the  said  re^iort  be  and  the  same  is  hereby, 
in  all  things,  ratified  and  confirmed. 


No.  1268. 


Consent  of  Owner  of  Dower  Estate,  etc.,  to  Receive  a  Gross 
Sum  in  Satisfaction  Thereof. 

(Code  Civ.  Pro.,  §2362.) 

[Title  of  proceeding.] 

I,  M.  B.,  of ,  having  a  contingent  ^or  absolute] 

right  of  dower  [or  as  tenant  for  life,  or  as  tenant  for  a  term 
of  years]  in  the  property  described  in  the  petition  in  the 
above  proceeding  [or  in  the  following  described  portion  of 
the  property  described  in  the  petition  in  the  above  proceed 
ing,  to  wit  (describe  same)],  do  hereby  consent  to  receive 
from  the  proceeds  of  the  sale  thereof  a  gross  sum,  to  be 
fixed  according  to  the  principles  of  law  ai)i:)licable  to  an- 
nuities, in  satisfaction  of  my  said  right  [or  estate]  in  said 
premises  [or  to  have  a  proportionate  share  of  the  proceeds 
of  the  sale  of  the  said  premises  invested  and  the  interest 
thereof  paid  to  me  from  the  time  of  the  said  investment  (or 


APvBITRATIOlSrS.  1141 

of  the  commencement  of  my  riglit,  or  estate,  in  said  premi- 
ses), until  the  determination  of  my  said  right,  or  estate,  in 
satisfaction,  etc.]. 
In  witness  whereof,  I  have  hereunto  set  my  hand,  this 

«, day  of ,  18 — . 

M.  B. 


In  presence  of • 

[Acknowledgment  or  proof  as  in  forms  Nos.  340,  638.'] 


TITLE  yill. 

FORMS  RELATING  TO  ARBITRATIONS. 

(Code  Civ.  Pro.,  Ch.  17,  Tit.  8.) 

No.  1269.  Submission  of  controversies  to  arbitration,  sbort  general  form, 

1270.  General  submission,  full  form. 

I'i71.  Special  submission  of  a  controversy. 

1272.  Appointment  by  arbitrators  of  time  and  place  of  hearing,  and 

notice  to  parties. 

1273.  Oaths  of  arbitrators. 

1274.  Subpoena  to  appear  before  arbitrators  as  a  witness. 
K7o.     Oath  to  witness  before  arbitrators. 

1276.  Award  by  arbitrators. 

1277.  Award  by  arbitrators,  another  form. 

1278.  Notice  of  motion  to  confirm  award. 

1279.  Order  upon  motion  confirming  award. 

1280.  Notice  of  motion  to  vacate  or  modify  the  award. 

1281.  Order  vacating,  etc.,  the  award. 

1282.  Judgment  upon  award. 

1283.  Affidavit  in  case  of  the  death  of,  or  the  appointment  of  a  commit. 

tee  for,  a  party,  after  filing  or  delivering  of  the  award. 

1284.  Order  extending  time  within  which  motion  to  vacate,  etc.,  award 

must  be  made. 

1285.  Revocation  of  submission. 

1286.  Notic:e  to  opposite  party  of  revocation. 

1287.  Complaint  against  a  party  revoking  a  submission  to  arbitration. 

1288.  Arbitration  bond. 


]N"().  1269. 


Submission  of  Controversies  to  Arbitration,  Short  General 

Form. 

(Code  Civ.  Pro.,  J^  236G.) 

We,  G.  II.,  (jf ,  and  J.  K.,  of  ,  do  liereby 

'This    acknowledgment   is   not   re-     §2362.)     The  money  is  not  to  Ik;  paid, 
quired  by  llic  stjitiilc^     (Code  Civ.  T'ro.,      or  the  iiivcsttnciit  iii'idc.  uiilil  ;iii  ((Tcct- 


1142 


Forms  Relating  to 


mutually  agree  to  submit  all  our  matters  in  difference,  of 
every  name  and  kind,  now  existing  between  us,  and  which 
might  respectively  be  the  subjeats  of  an  action,  to  the  arbi- 
tration, determination  and  award  of  A.  B,,  C.  D.  and  E.  F., 
as  arbitrators,  the  said  arbitrators  [or  any  two  of  them]'  to 
hear  and  deterndne  the  same,  and  make  their  award,  in 
writing,  on  or  before  the day  of ,  18 — . 

[The  said  arbitrators  may  select  {or  appoint)  an  additional 
arbitrator  {or  umpire)  by  appointment  in  writing.]  [*] 

And  we  further  agree,  that   a  judgment  of  a  court  osf 

record,  to  wit :  the Court  [in  the  county  of ],' 

shall  be  rendered  upon  the  award  made  pursuant  to  this 
submission,  as  provided  by  section  2366  of  the  Code  of  Civil 
Procedure. 

Witness  our  hands,  this day  of ,  18 — .' 

G.  H. 
J.  K. 

In  presence  of . 

[Acknowledgment  or  proof,  as  in  forms  Nos.  340,  538.] 


tial  release  of  the  right  or  estate  of  the 
person  so  consenting,  executed  to  the 
satisfaction  of  the  court,  and  duly  ac- 
knowledged, etc,  has  been  filed  with 
the  clerk.  (Id.)  For  form  of  release 
of  dower,  see  form  No.  1265. 

'  An  award  by  a  majority  is  valid, 
unless  the  concurrence  of  all  is  ex- 
pressly required  in  the  submission. 
(Code  Civ.  Pro.,  §  2371.) 

"  If  the  Supreme  Court  is  specified, 
the  submission  may  also  specify  the 
county  in  which  the  judgment  shall  be 
entered.  If  it  does  not,  the  judgment 
may  be  entered  in  any  county.  (Code 
Civ.  Pro.,  §  2366.) 

'  As  to  what  controversies  may  or 
may  not  be  submitted  to  arbitration 
and  generally  on  the  subject,  see 
Code  Civ.  Pro.,  §  2365  ;  Keep  v.  Keep 
(16  Hun,  141 ;  S.  C,  17  id.,  152), Wood 
V.  Tunnicliff  (74  N.  Y.,  38),  Stout  v. 
Woodward  (71  N.  Y.,  590),  Ryder  v. 
Dodge  (14  Week.  Dig.,  84),  Dodds  v. 
Hakes  (114  N.  Y.,  260),  Cobb  v. 
Dolphin  Mfg.  Co.  (108  id.,  463),  Giles 


Lithographic,  etc.,  Co.  v.  Recamier 
Mfg.  Co.  (15  State  Rep.,  354),  Gus- 
taveson  v.  McGay  (12  Daly,  423), 
White  v.  Matthews  (14  Week.  Dig., 
27),  Matter  of  Martin  (1  How.  Pr. 
[N.  S.].  28),  Linde  v.  Republic  Fire 
Ins.  Co.  (50  Super.  Ct.,  362),  Wilberly 
V.  Matthews  (91  N.  Y.,  648),  Bedell  v. 
Kennedy  (109  id.,  153),  Davenport  v. 
Long  Island  Ins.  Co.  (15  Week.  Dig., 
62),  Livingston  v.  Sage  (95  N.  Y.,  289), 
Harris  v.  Hiscock  (91  id.,  340),  People 
ex  rel.  Union  Ins.  Co.  v.  Nash  (111 
id.,  310),  N.  Y.  Lumber,  etc.,  Co.  v. 
Schneider  (15  Civ.  Pro.  R.,  30),  Nat. 
Bank  of  Republic  v.  Darrah  (30  Hun, 
29),  McNulty  V.  Solley  (95  N.  Y.,  242, 
affg  S.  C,  31  Hun,  17),  Chatfield  v. 
Hewlett  (2  Dem.,  191),  Hurst  v.  N.  Y. 
Produce  Exchange  (100  N.  Y.,  605), 
N.  Y.  Lumber  and  Wood  Working  Co. 
v.  Schneider  (119  id.,  475),  Matter  of 
Bennett  (30  State  Rep.,  166,  aff'd  with- 
out op.,  121  N.  Y.,  718),  Union  Ins. 
Co.  V.  Central  Trust  Co.  (36  State 
Rep.,  435),  McGregor   v.    Sprott   (35 


Forms  Relating  to 


1142a 


id.,  907).  Matter  of  Di  Carlo  (59  Hun, 
360),  Flannery  v.  Shahagian  (84  State 
Rep.,  887),  Same  v.  Same  (43  id.,  598  ; 
134  N.  Y.,  85),  Herbst  v.  Ilag-enaers 
(137  id.,  290),aff'gS.  C,  62  Hun,  568), 
Beach  v.  Sterne  (67  Hun,  341).  Box  v. 
Costello  (6  Misc.,  415),  Matter  of  Gren- 
ing  (74  Hun,  62),  Heyman  v.  Smad- 
beck  (6  Misc.,  527),  Union  Insurance 
Co.  V.  Central  Trust  Co.  (87  Hun,  140, 
aS'g  S.  C,  24  Civ.  Pro.,  219),  bhrump 
V.  Parfitt  (S4  id.,  341). 

The  submission  is,  in  legal  effect,  a 
discontinuance  of  an  action  pending 
upon  the  cause  of  action  submitted, 
although  the  arbitrators  have  not  con- 
sented to  act ;  and  their  subsequent 
failure  or  refusal  to  take  upon  them- 
selves the  duties  of  the  arbitration, 
does  not  revive  the  action.    (McNulty 


V.  Solley,  95  N.  Y.,  242  ;  arg  S.  C  , 
31  Hun,  17;  17  Week.  Dig.  568.) 

This  result  follows,  although  the 
submission  is  not  acknowledged  as 
prescribed  by  section  2366  of  the  Code 
of  Civ.  Pro.     (Id.) 

See,  also,  as  to  effect  of  there  being 
no  acknowledgment,  Cutter  v.  Cutter 
(48  Super.  Ct.,  470),  Lorenzo  v.  Deery 
(26  Hun,  447). 

See,  also,  Harris  v.  Hiscock  (91  N. 
Y.,  340),  as  to  effect  of  submission. 

Section  2366  of  Code  Civ.  Pro.,  is 
applicable  only  to  submissions  made 
as  prescribed  in  title  8  of  chapter  17 
of  that  statute.  (Lorenzo  v.  Deerv 
(26  Hun,  447.) 

See.  also,  Cutter  v.  Cutter  (48  Super. 
Ct.,  470),  and  section  2386,  id. 

As  to  who  may  bind  by  submission, 
see  McPhersou  v.  Cox  (86  N.  Y.,  472 ; 


Arbitrations.  1143 

No.  1270. 
Geueral  Submission,  Full  Form. 

(Code  Civ.  Pro.,  §  2366.) 

Whereas,  differences  do  now  and  for  a  long  time  have 
existed  between  A.  B.  and  C.  D.,  both  of  the  city  of  Al- 
bany, in  relation  to  divers  subjects  of  controversy  and  dis- 
pute, and  which  might  respectively  be  the  subjects  of  an 
action. 

Now,  therefore,  the  undersigned,  said  A.  B.  and  C.  D., 
do  hereby  mutually  covenant  and  agree  to  and  with  each 
other  to  submit  all  and  all  manner  of  actions,  cause  and 
causes  of  actions,  suits,  controversies,  claims  and  demands 
whatsoever  now  pending,  existing  or  held  by  and  between 
the  said  parties  to  J.  K.,  M.  C.  and  E.  F.,  as  arbitrators, 
who  [or  any  two  of  whom]  shall  arbitrate,  award,  order, 
judge  and  determine  of  and  concerning  the  same. 

[The  said  arbitrators  may  select  {or  appoint)  an  additional 
arbitrator  {or  umpire)  by  appointment  in  writing.] 

And  we  do  mutually  covenant  and  agree  [f]  to  and  with 
each  other,  that  the  said  award  to  be  made  by  the  said  arbi- 
trators, or  any  two  of  them,  shall  in  all  things  by  us,  and 
each  of  us,  be  well  and  faithfully  kept  and  observed  [pro- 
vided, however,  that  the  said  award  shall  be  made  in  writ- 
ing, under  the  hands  of  the  said  arbitrators,  or  any  two  of 
them,  and  duly  acknowledged  or  proved  and  certified  as 

required  by  law,  and  filed  in  the county  clerk's 

office  {or  in  the  office  of  tlie  clerk  of  the Court), 

rev'g  S.  C,  21  Hun,  493),  People  v.  ate  the  award,  and  an  award  determ- 

Supervisors  (24  Hun,  413);  Tilton  v.  ining  a  part  only  is  void.     (Id.) 

U.  S.  L.  Ins.  Co.  (8  Daly,  84).  It  is  only,  it  feems,  when  the  matters 

In  cases  of  doubt  as  to  intention  re-  omitted  are  not  necessarily  dependent 

garding  matters  to  be  arbitrated  upon,  upon,  and  connticted  with,  the  other 

the  presumption  is  in  favor  of  an  intent  jxnnts,   that  a  partial   award  will  be 

that  all  matters  in  controversy  should  be  sustained.     (Id.,  p.  217.) 

decided.     (.Jones  v.  Welwood,  71   N.  As  to  appointment  of  an  additional 

Y.,  208;  aff'g  S.  C,  9  Hun,  166.)  arbitrator,  or  umpire,  and  his  duties, 

Where  a  submission  is  full  and  gen^  see  Code  Civ.  Pro.,  ^5  2367. 

era!  of  all  matters  in  question  between  For    answer    of    arbilr.unciil     and 

the  parties,  and  the  intent  ajijiears  to  award,  see  form  No.  1014. 

have  everything  decided   if  anything  See,  also,  as  to  provision  for  fees  of 

is,  a  decision  of  all  matters  submitted  arbitrators,  Code  Civ.  Pro.,  ^5  2371. 
will  be  imperatively  required  to  valid- 


1144  Forms  Relating  to 

or  delivered  to  tlie  said  parties  in  difference,  or  either  of 

tliem,  or  his  attornej',  on  the day  of ,  18 — ].* 

[Conclude  as  in  form  No.  1269,  from  (*).'] 

A.  B. 

C.  D. 


In  presence  of . 

[Acknowledgment  or  jDroof  as  in  forms  Nos.  340,  538.] 


No.  1271. 
Special  Submission  of  a  Controversy. 

(Code  Civ.  Pro.,  ^2366.) 

Whereas,  a  controversy  is  now  existing  and  pending  be- 
tween A.  B.  and  C.  D.,  in  relation  to  [state  subject  of  the 
controversy],  which  might  be  the  subject  of  an  action. 

Now,  therefore,  the  said  A.  B.  and  C.  D.  do  hereby  mutu- 
ally consent  and  agree  to  submit  the  said  controversy,  and 
all  questions  of  difference  in  regard  thereto,  to  the  arbitra- 
ment and  decision  of  G.  H.,  I.  J.  and  K.  L.  [or  any  two  of 
them]. 

[The  said  arbitrators  may  select  (or  appoint)  an  additional 
arbitrator  {or  umpire)  by  appointment  in  writing.] 

And  we  do  mutually  covenant  and  agree  [conclude  as  in 

last  form  from  (f)].' 

A.  B. 

C.  D. 

In  presence  of . 

[Acknowledgment  or  proof  as  in  forms  Nos.  340,  638.] 


No.  1272. 

Appointment  by  Arbitrators  of  Time  and  Place  of  Hear- 
ing, and  Notice  to  Parties. 

(Code  Civ.  Pro.,  §2368.) 

A.  B.  j 

and   I"  In  arbitration. 
C.  D.  ) 
To  A.  B.  and  C.  D. : 
You  are  hereby  notified  that  the  undersigned,  arbitrators 

>  See  section  2372,  Code  Civ.  Pro.,        «  See  notes  to  form  No.  1269. 
as  to  the  filing  or  delivery.  ^  See  notes  to  forms  Nos.  1269, 1270. 


Akbitratioks.  1145 

appointed  pursuant  to  an  agreement  between  you,  dated 

. ,  18 — ,  hereby  appoint  the day  of , 

18 — ,  at o'clock  in  the noon,  as  the  time 

and  [name  place  of  hearing],  as  the  place  for  the  hearing  of 
the  matters  so  submitted  to  them,  and  that  they  will  attend 
at  such  time  and  place  for  the  purpose  of  such  hearing.' 

Dated ,  IS—. 

Yours,  etc., 

[Signatures  of  arbitrators.] 


No.  1273. 
Oaths  of  Arbitrators. 

(Code  Civ.  Pro.,  §  2369.) 

[Title  of  arbitration  as  in  form  No.  1272.] 

We,  the  undersigned  arbitrators,  appointed  by  and  be- 
tween A.  B.  and  CD.,  do  swear,  that  we  respectively  will 
faithfully  and  fairly  hear  and  examine  the  matters  in  con- 
troversy between  the  before  named  parties,  and  will  make 
a  just  award  therein  according  to  the  best  of  our  under- 
standing. 

[Signatures  of  arbitrators.] 

[Jurat  as  in  form  No.  46.'] 


No.  1274. 
Subpoena  to  Appear  Before  Arbitrators  as  a  Witness. 

(Code  Civ.  Pro.,  §  2370.) 

The  People  of  the  State  of  New  York,  to  J.  K.,  and  L.  M, 
greeting  : 
You  are  hereby  commanded  and  required  to  be  and  appear 


'  The   time  for   making  an  award.  Code  Civ.  Pro.     It  may  be  waived  by 

under   a   sealed   submission,   may  be  the  written   consent   nf  the  parties  to 

extended  by  parol  agreement ;  an<l  if  the    submission    or    their    attorneys, 

the  parties  proceed  without  objection,  (Code  Civ.  Pro.,  §  2369.) 

after  the  time    has  expired,  they  will  See  also  Kelsey  v.  Darrow  (2'J  Hun, 

be  deemed  to  have  waived  the  stipu-  125),  Wilberly  v.  Matthews  (11  Week. 

lati(jn    as    to    time.     (Wood  v.  Tunni-  Dig.,  471),  Cutter  v.  Cuttei- (4S  Super, 

cliff,  74  N.  Y.,  38.)  Ct.,  470).    Flannery  v.  Shahagian   (34 

As  to  adjournments,  see   Code  Civ.  Rtate  Rep.,  887),    Same  v.  Same    (134 

Pro.,  §  2368.  N.  Y.,  8')  ;  4r>  State  Rep.,  498),  Matter 

'This  oath  is  to  be  taken  before  an  of  Greniiig  (74  Hun,  62),  Box  v.  C'oh- 

officer    designated    in    section    842    of  tello  (15  Muse,  415). 

144 


1146  Forms  Relating  to 

before  [names  of  arbitrators],  or  any  two  of  them,  arbitra- 
tors chosen  to  determine  a  controversy  between  A.  B.  and 

C.  D.,  at  [name  place  of  attendance],  on  the day 

of ,  18 — ,  at o'clock  in  the noon, 

then  and  there  to  testify  and  give  evidence  in  relation  to 
said  controversy  before  said  arbitrators,  on  the  part  of  said 
A.  B.     Hereof  fail  not  at  youi-  peril. 

Given  under  our  hands   this  day  of , 

18—,  at . 

[Signatures  of  arbitrators.] 


No   1275. 
Oath  to  Witness  Before  Arbitrators. 

(Code  Civ.  Pro.,  §2370.) 

You  do  swear  that  the  evidence  which  you  shall  give  to 
the  arbitrators  here  present,  in  a  certain  issue  joined  [or  on 
certain  matters  of  difference],  between  A.  B.  and  C.  D.,  shall 
be  the  truth,  the  whole  truth,  and  nothing  but  the  truth, 
so  help  you  God.i 


No.  1276. 
Award  by  Arbitrators. 

(Code  Civ.  Pro.,  §  2371,  2372.) 

A.  B.  ) 

and   j-  In  arbitration. 
C.  D.  ) 

The  undersigned  [name  arbitrators]  having  been  duly 
appointed  arbitrators,  as  to  certain  matters  in  difference 
between  the  above  named  A.  B.  and  C.  D.,  by  a  bond  \or 
submission,  in  writing]  executed  by  the  said  parties,  bear- 
ing date  on  the day  of ,  18-,  as  by  refer- 
ence thereto  will  fully  appear,  and  having  heard  the  proofs 
and  allegations  of  the  said  parties,  and  duly  deliberated 
thereupon,  do  hereby  award,  determine  and  order,  that 
[insert,  the  finding  of  the  arbitrators]. 

[And  we  do  further  require  the  payment  by  (name  party) 
of  our  fees  and  expenses  as  such  arbitrators,  to  wit :  the 

'  See  Matter  of  Grening-  (74  Hun,  62). 


Akbitrations.  1147 

sum  of dollars  for  -^ —  days  attendance  of  each 

of  us  as  said  arbitrators,  and  [name  expenses.'] 

In  witness  whereof,  we  have  hereunto  set  our  hands  [and 

seals],*  this day  of ,  18 — . 

[Signatures  of  arbitrators.] 

In  presence  of . 

[Acknowledgment  or  proof  as  in  forms  Nos.  340,  538.] 


No.  1277. 
Award  of  Arbitrators,  Another  Form. 

(Code  Civ.  Pro.,  §§  2371,  2372.) 

[Title  of  arbitration  as  in  form  No.  1276.] 
To  all  to  iDhom  these  presents  shall  come  or  may  concern: 

We  [name  arbitrators],  to  whom  was  submitted  as  arbi- 
trators, the  matters  in  controversy  existing  between  A.  B. 
and  C.  D.,  as  by  the  condition  of  their  respective  bonds  or 
obligations  [or  the  submission]  executed  by  the  said  par- 
ties respectively  [and  sealed  with  their  respective  seals], 
dated  the  day  of ,  18 — ,  more  fully  ap- 
pears : 

Now,  therefore,  know  ye,  that  we,  the  aibitrators  men- 
tioned in  the  said  bond  [or  submission],  having  heard  the 
proofs  and  allegations  of  the  respective  parties,  and  exam- 
ined the  matters  in  controversy  by  them  submitted  therein, 
do  therefore  make  this  award,  in  writing,  that  is  to  say,  the 
said,  etc. 

In  witness  whereof,  we  have  hereunto  subscribed  these 

presents,  this day  of ,  in  the  year  18 — .' 

[Signatures  of  arbitrators.] 

In  the  presence  of . 

[Acknowledgment  or  proof  as  in  forms  Nos.  340,  538.] 

'  See  section  2371,  Code  Civ.  Pro.  28),  Shrump  v.  Parfitt  (84  Hun,  341), 
*  Ab  to  requirements  of  awai-d,  fil-  and  note  1,  to  form  No.  1272. 
in-r,  etc.,  eee  Code  Civ.  Pro.,  §  2372;  Any  form  of  woida  which  amounts 
ami  Bee  g'enerally,  as  to  jmwf'rH,  etc.,  to  a  decision  of  the  (juestion  Rubmitted 
that  peclion,  and  section  2371,  id.,  and  is  g^ood  as  an  award.  Technicul  ex- 
notes  to  form  No.  1209.  pressions  are  not  necessary,  nor  tech- 
See  also.  Brown  v.  Lyddy  (11  Hun,  nical  ]>recision  and  certainty,  nor  any 
451),  Lorenzo  v.  Deery  (26  id..  447),  introductory  recitals.  (Crary's  N.  Y. 
Matter  of  Martin  (1  How.  Pr.  [N.  S.],  Prac,  vol.  1,  p.  34,  citing^  Russ.,  Arl)., 


1148  Forms  Rp:lating  to 

No.  1278. 
Notice  of  3Iotion  to  C'oiifirin  Award* 

(Code  Civ.  Pro.,  §2373.) 

[Title  of  arbitration  as  in  form  No.  1276.] 

To  C.  D.  [or  I.  J.,  Attorney  for  C.  D.J : 

Take  notice,  that  an  aj)plication  will  be  made  to  the  [name 

court],  at  a term  thereof,  to  be  held  at,  etc.,  on, 

etc.,  for  an  order  [*]  confirming  the  award  of  [name  arbi- 
trators] in  the  above  entitled  matter,  which  award  is  dated 
,  18 —  [and  for  judgment  thereupon  and  in  accord- 
ance therewith],  with  costs,  and  for  such  other  or  further 
relief  as  may  be  proper. 

That  said  application  will  be  made  upon  said  award,  and 
upon  [name  other  papers].' 

Yours,  etc., 

A.  B.  [or  M.  N.,  Attorney  for  A.  B.]. 

[Office  address.'] 


No.  1279. 
Order  upon  Motion  Confirming  Award. 

(Code  Civ.  Pro.,  g§  2373,  2374.) 

[At,  etc.,  as  in  form  No.  80.] 

[Title  of  arbitration  as  in  form  No.  1276.] 

On  reading  [and  filing]  the  award  made  bj"  the  arbitra- 
tors [naming  them]  in  the  above  matter,  dated  the 

day  of ,  18 — ,  by  w^hich  it  appears  that,  etc.  [state 

substance  of  award],  with  proof  of  due  service  upon  C.  D., 
etc.,  of  notice  of  this  application,  together  with  a  copy  of 

244 ;  Butler  v.  Mayor  of  N.  Y.,  1  Hill,  party  to  the  submission,  or  his  attor- 

489  ;  Ott  V.   Schroepel,    1  Seld.,   482 ;  ney,  as  prescribed   by  law  for  service 

Ott  V.  Schroepel,  4  Barb.,  250.)     See  of  a  notice  of  a  motion  upon  an  attor- 

also.   Beach  v.  Sterne   (67  Hun,   341),  ney  in   an   action   in  the  same  court. 

Herbst  v.  Hagenaers  (137  N.  Y.,  290),  In   the   Supreme   Court,    the    motion 

Fiannery  v.  Shahagian  (134  id.,  85).  must  be  made  within  the  judicial  dis- 

*See  notes  to  form  No.  1276.  trict  embracing  the  county  where  the 

^  The  application  must   be  made  at  judgment  is   to   be   entered.      (Code 

any  time  within   one   year   after    the  Civ.  Pro.,  §  2373.) 

award   is  made,  to  the  court  specified  As   to   costs,   see   Code    Civ.    Pro., 

in   the   submission.      Service   of    the  §  2378. 

notice  is  to  be  made  upon  the  adverse  ^  See  note  2  to  form  No.  122. 


Arbitrations.  1149 

said  award,  and  upon  motion  of  M.  J,,  counsel  for  said 
A.  B.,  after  hearing,  etc.,  and  on  reading  [name  any  oppos- 
ing papers] :  [*] 

It  is  hereby  ordered,  that  the  said  award  be  and  the  same 
is  hereby  conhrmed,  and  that  the  said  A.  B.  have  judgment 
against  the  said  C  J),  for  the  relief  therein  si3ecified,  and 
for  the  fees  and  expenses  of  the  said  arbitrators  as  therein 
mentioned,  and  [twenty-live  dollars]  costs  of  this  applica- 
tion, and  of  the  proceedings  subsequent  hereto,  and  his  dis- 
bursements therefor,  to  wit :  the  sum  of [or  to  be 

taxed].'  

No.  1280. 
Jfotice  of  Motion  to  Yacate  or  Modify,  etc.,  the  Award. 

(Code  Civ.  Pro.,  ^  2376.) 

As  in  form  Xo.  1278  to  [■^],  and  from  thence  as  follows : 
Vacating  [o?'  modifying  (or  con'ecting)  in  the  following  j^ar- 
ticulars  (stating  same)],  the  award  of  [name  the  arbitrators]^ 

made  herein,  dated ,  18 — ,  with  costs,"  and  for  such 

other  or  furtlier  relief  as  ma}^  be  j) roper. 

That  such  application  will  be  made  upon  the  said  award, 
and  upon  the  affidavits  and  papers,  with  copies  of  which 
you  are  herewith  served.' 

Yours,  etc., 
C.  D.  [or  F.  J.  Attorney  for  C.  D.]. 
[Office  address.*] 
To  A.  B. 

Let  all  proceedings  on  the  part  of  A.  B.,  to  enforce  the 
said  award,  be  stayed  until  the  hearing  and  determination 
of  the  within  noticed  motion. 


Dated ,  18—. 


A.  O.,  Judge,  etc. 


'  See  notes  to  form  No  1278.  is  filed  or  delivered.    (Code  Civ.  Pro., 

»  See  a.s  to  cost.s  upon  vacating  award,  §  2376.)    As  to  stay  of  pn)oeedin{,'9 

Cofle  Civ.  Pro.,  §2877.  and  by  whom  granted,  see  same  sec- 

'  This  notice  must  be  served  upon  lion. 

die    adverse    party,   or  his  attorney,        *  See  note  2  to  form  No.  122. 

within  three  months  after  the  award 


1150 


Forms  Relating  to 


No.  1281. 
Order  A^acatiiii;,  etc.,  Award. 

(Code  Civ,  Pro.,  §2376.) 

[At,  etc.,  as  in  form  No.  80.] 
[Title  of  arbitration  us  in  form  No.  1276.] 

On  reading  and  tiling  [name  motion  papers],  with  notice 
of  motion,  tliat  the  award  made  herein  by  [name  arbitra- 
tors], as  arbitrators,   dated  the day  of , 

18 — ,  be  vacated  [or  modified,  or  correfjted,  etc.],  and  on 

motion  of ,  of  counsel  for  C.  D.,  after  hearing,  etc., 

and  on  reading  [name  opposing  papers] : 

It  is  hereby  ordered,  that  the  said  award  be  and  the  same 
is  hereby  vacated,  with dollars  «osts  and  disburse- 
ments, to  wit : dollars'  \or  to  be  taxed],  to  be  paid 

by  the  said  A.  B.  to  the  said  CD." 

[Or  be  modified  {or  corrected)  in  the  following  particulars, 
to  wit  (state  same),  with  (ten)  dollars  costs  of  this  motion, 
to  be  paid,  etc.,  as  above.] 


*See  as  to  costs,  etc.,  section  2377, 
Code  Civ.  Pro. 

"As  to  grounds  upon  which  the 
award  may  be  vacated  or  moditied,  see 
sections  2374, 2375,  Code  Civ.  Pro.,  and 
Curtis  v.  Gokey  (68  N.  Y.,  300  ;  rev'g 
S.  C,  5  Hun,  555),  Jones  v.  Welwood 
(71  N.  Y.,  208  ;  aff'g  S.  C,  9  Hun,  166), 
Halstead  v.  Seaman  (82  N.  Y.,  27), 
Bough  (on  V.  Seamans  (9  Hun,  392), 
Locke  v.  Filley  (14  Hun,  139),  Fallon 
V.  Kelehar  (16  Hun,  266),  De  Castro  v. 
Brett  (56  How.  Pr.,  434),  Shrump  v. 
Parfitt  (84  Hun,  341),  Nat.  Bank  of 
Republic  v.  Darrah  (30  Han,  294), 
Flannery  v.  Shahagian  (45  State  Rep., 
598  ;  134  N.  Y.,  85),  Chism  v.  Schip- 
per  (39  Alb.  Law  Jour.,  149),  among 
ether  cases. 

Arbitration  proceedings  should  be 
regarded  with  favoi",  and  reviewed 
with  great  liberality,  so  as  to  sustain 


rather  than  reverse  ;  and  if  an  award 
is  within  the  submission,  and  there  is 
no  evidence  of  fraud,  courts  will  not 
ordinarily  interfere  with  the  deter- 
mination. (Roosevelt  v.  Nichols  6 
Week.  Dig.,  437  [Supr.  Ct.,  Gen.Tm.]. 

It  seems,  that  an  award  made  against 
the  estate  of  a  deceased  person,  under 
a  Bubmiasion  made  by  his  personal 
representatives,  ascertains  and  liqui- 
dates the  claim,  but  confers  no  priority 
of  payment  over  other  creditors  upon 
the  person  in  whose  favor  it  is  made. 
Nor  does  an  award  of  payment  abso- 
lutely affect  the  rights  of  other  cred- 
itors, although  it  may  bind  the  repre- 
sentatives personally.  (Wood  v.  Tun- 
nicliff,  74  N.  Y.,  38.) 

As  to  effect  upon  jiroceedings  of 
death,  or  the  appointment  of  a  com- 
mittee of  a  party,  and  proceedings 
thereupon,  see  Code  Civ.  Pro.,  §  2382. 


Akbitratiot^s.  1151 

No.  1282. 
Judgiueiit  upon  Award. 

(Code  Civ.  Pro.,  §  2378.) 

[fitle  of  arbitration.] 

Judgment  of  the day  of ,  18 — . 

It  is  adjudged,  pursuant  to  tlie  order  of  tlie Court, 

made  at  a Term  thereof,  held  at,  etc.,  on,  etc.,  on 

motion  of ,  attorney  for  A.  B.  [or  C.  D.],  that  the 

said  A.  B.  recover  from  and  against  tlie  said  C.  D.  the  sum 

of •  dollars  and cents,  together  with 

dollars  costs  and  disbursements'  [or  state  other  relief]/ 

J.  L.,  Clerk. 

No.  1283. 

Attidavit  in  Case  of  the  Death  of,  or  the  Appointment  of  a 
Committee  for,  a  Party,  after  Delivery  of  the  Award,  ou 
Application  to  Confirm,  etc. 

(Code  Civ.  Pro.,  §  2382). 

County,  ss.  : 

A.  B.,  of ,  being  duly  sworn,  says,  that  on  the 

day  of ,  18 — ,  an  agreement  was  made  be- 


tween this  deponent  and  C.  D.,  by  which  the  said  parties 
thereto  submitted  to  the  award  of  [name  arbitrators]  all  the 
matters  in  controversy  between  them  [or  specify  matter  sub- 
mitted]. 

That  such  proceedings  were  had,  pursuant  to  said  submis- 
sion, that  on  the day  of — — ,  18 — ,  an  award 

was  made  by  said  arbitrators,  and  filed  [in  the 

county  clerk's  office],  as  provided  thereby  [or  was  delivered 
to  the  said  A.  B.,  or  his  attorney,  as  provided  thereby],  a 
copy  of  which  award  is  hereto  annexed,  marked  "A.'' 

That  on  or  about  the day  of ,  18 — ,  and 

after  the  award  of  said  arbitrators  had  been  filed  [or  deliv- 

'  See  Code  Civ.  Pro.,  §§  2377,  2.378,  appeal,  see  id.,  §  2381.  and  Mailer  of 

as  to  costs,  etc.  Voo'u-  v.  Jolinsioii  (32  llim,  '21.')),  Mat- 

'■'  As  to  effect  of  jiidirmrrit  rcridcn-d  Icr  pf  I'oole  (5  Civ.  Pro.  \{.  [BrowneJ, 

upon  an  award  and  enforcement  there-  579). 
of,  see  Code  Civ.  Pro.,  §  2380.     As  to 


1152  Forms  Relating  to 

ered]  as  aforesaid,  the  said  C.  D.  died,  being,  at  the  time  of 

his  death,  a  resident  of  the  count}'  of ,  intestate, 

iind  that  M.  P.,  of ,  has  since  been  dul}'  api)ointed 

b}'  the  surrogate  of  said county  administrator  of 

the  goods,  etc.,  of  said  C.  D.,  deceased  [or  leaving  a  will, 
of  which  M   P.  has  since  been  ai)pointed  the  executor  by 

the  surrogate  of  said countj^] '  [or  set  forth  lunacy, 

etc.,  proceedings,  and  appointment  of  committee  for  adverse 
party  after  the  award  has  been  filed  or  delivered]. 

A.  B. 
[Jurat  as  in  form  No.  46.] 


No.  1284. 

Order  Extending  Time  within  which  Motion  to  Yacate, 
etc..  Award  Must  be  3Iade  in  Case  of  Death,  etc. 

(Code  Civ.  Pro.,  §2382.) 

[At,  etc.,  as  in  form  No.  80.] 
[Title  of  arbitration  as  in  form  No.  1276.] 

Upon    the    accompanying    affidavit   of  ,    dated 

,18-: 

It  is  hereby  ordered,  that  the  time  w^ithin  which  notice 

of  a  motion  to  vacate,  modify  or  correct  the  award  in  the 

above  entitled  matter  must  be  served,  be  and  the  same  is 

hereby  extended  for  [name  term]  from  the  date  of  this 

order. 

Dated ,  18—. 

A.  O.,  Judge,  etc. 

No.  1285. 
Revocation  of  Submission. 

(Code  Civ.  Pro.,  §2383.) 

[Title  of  arbitration.] 
To  [names  of  arhitrators] : 
Gentlemen— Take  notice,  that  I  hereby  revoke  your 

'  The  application  may  also  be  made  property.      Notice  of  the  application 
by  the  executor,  etc.,  of  the  deceased  must  be  given.     (See  provisions  of  sec- 
party,  or  by  his  heir  or  devisee,  who  tion  2382,  Code  Civ.  Pro.) 
has  svicceeded  to  his  interest  in  the  real 


Arbitrations.  1153 

powers  as  arbitrators  under  the  submission  made  to  you  by 

C.  D.  and  myself,  in  writing,  and  dated  the day  of 

,  18-.' 

Dated ,  18—. 

Yours,  etc., 
A.  B.  [b]/  I.  J.,  7ifs  Agent,  duly  authorized\. 


No.  1286. 
Notice  to  Opposite  Party  of  Revocation. 

[Title  of  arbitration.] 
To  C.  D.  : 

Sir — Take  notice,  that  I  have  this  day  revoked  the  pow- 
ders of  [name  arbitrators],  arbitrators  chosen  to  settle  the 
matter  \or  matters]  in  controversy  between  us,  by  a  notice 
of  revocation,  of  which  the  [following]  is  a  co^j. 

Dated ,  18—. 

Yours,  etc., 


[Annex  copy  of  notice  of  revocation.] 


A.  B. 


No.  1287. 

Complaint  Against   a  Party  Revoking   a  Submission   to 

Arbitration. 

(Code  Civ.  Pro.,  §2384.) 

[Title  of  cause.] 

The  complaint  of  the  above  named  plaintiff  respectfully 

shows,  that  heretofore,  and  on  or  about  the day  of 

,   18 — ,  by  a  certain  agreement  [in  writing,  duly 

executed  and  acknowledged,  or  i)roved,  and  certified  in  like 
manner  as  a  deed  to  be  recorded]  then  made  by  and  between 
the  defendant  and  the  plaintiff,  it  was,  amongst  other  things, 

'  A.  seal  is  unnecessary  in  any  case.  Pro.  R.,  30;  119   N.   Y.,   140),   Union 

The    submission    cannot   ))e   revokeil  Ins.  Co.  v.  Central  Trust  Co.  (87  Hun, 

after  the  alleviations  and  jiroofs  of  the  140). 

parties  have  Ijeen  closed,  and  the  mat-  As  to  liability  of  party  revoking,  see 

ter  finally  suV^raittol  to  the  arbitrators  sections  2384,  238.'),  Code  Civ.  Pro. 

for   their   deci.sion.     Any    })arty    may  As  to  effect  of  the  death  of  a  i)arty 

revoke.     (Code    Civ.     Pro.,    §    23S3.)  to  a  Hubmission,  or  tiie  Hi)i)oiiitiiii-iit  of 

See,  aloo,  Peojilo  ex  rel.  Union  Ins.  Co.  the  coiiimittee  of  th<«  ptM-soii   or    i)rop- 

v.  Nash  (111   N.  Y.,  310),  N.  Y.  Luin-  erty  of  such  a  party,  as  a  revocation, 

ber,  etc.,  Co.   v.   Schneider   (1.')   Civ.  see  section  2382  of  Code  Civ.  Pro. 


1154  Forms  Relating  to 

agreed,  by  and  between  the  said  plaintiff  and  the  defendant, 
that  they  would  submit  the  matters  in  controversy  then  ex- 
isting between  the  said  plaintiff  and  the  said  defendant, 
respecting  certain  money  claimed  by  the  said  [plaintiff]  to 
be  due  from  him,  the  said  [defendant]  [or  respecting  certain 
unsettled  accounts  and  matters  between  them,  etc.,  accord- 
ing to  the  tei'ms  of  the  agreement],  to  the  linal  award  and 
determination  of  A.  B.,  C.  D.  and  E.  F.,  arbitrators,  chosen 
by  the  said  parties  [or  any  two  of  them],  so  as  the  said  arbi- 
trators should  make  their  aAvard  [in  writing],  ready  to  be 
delivered  to  the  said  parties,  or  such  of  them  as  should  re- 
quire the  same,  on  or  before  the day  of , 

then  next  [or  to  be  tiled  in  the county  clerk's  office 

{or  name  other  clerk's  office),   or  delivered  to  one  of  the 

said  parties  or  his  attorney,  on  or  before  the day 

of ,  then  next] '  [and  thereupon,  afterwards,  to  wit : 

on  the  day  and  year  first  above  mentioned,  in  consideration 
of  the  premises,  and  that  the  said  plaintiff,  at  the  said  de- 
fendant's request,  had  then  promised  the  said  defendant  ro 
perform  the  said  agreement,  in  all  things  to  be  performed 
by  the  said  plaintiff  by  virtue  thereof,  the  said  defendant 
then  promised  the  said  plaintiff  to  perform  the  same  in  all 
things,  to  be  by  him,  the  said  defendant,  performed  by  vir- 
tue thereof];''  and  thereupon,  afterwards,  to  wit:  on  the 

day  of ,  18 — ,  the  said  arbitrators  proceeded 

upon  the  said  submission  so  as  aforesaid  made,  and  the  said 
parties  then  appeared  before  the  said  arbitrators,  and  pro- 
ceeded to  the  trial  and  investigation  of  the  matters  so  sub- 
mitted to  the  said  arbitrators  as  aforesaid  ;  and  afterw^ards, 

to  wit :  on  the day  of ,  18 — ,  after  the  said 

investigation  was  commenced,  and  before  the  cause  was 
finally  submitted  to  the  said  arbitrators,  the  said  defendant 
revoked  the  said  submission  by  an  instrument  of  revocation, 
in  writing,  signed  by  [him],  and  delivered  to  the  said  arbi- 
trators, whereby  the  powers  of  the  said  arbitrators  in  the 
premises  ceased  and  were  annulled,  and  whereby,  also,  the 
said  plaintiff  sustained  great  damage,  to  wit : dol- 

'  See  provisions  of  section  2372,  Code    were  contained  in  the  old  pleadings, 
Civ.  Pro.  may  be  omitted  under  the  present  syfr 

"  These  words  in  brackets,  which    tem  of  pleading. 


Arbitrations.  1155 

lars  for  his  costs,  expenses  and  damages  in  employing  and 
paying  counsel,  subpoenaing  and  paying  witnesses,  and  in 
otherwise  preparing  for  the  trial  of  the  said  cause  before 
the  said  arbitrators. 

Wherefore  the  plaintiff  demands  judgment  against  the  de- 
fendant for dollars,  with  the  costs  of  this  action.' 

[Signature,  etc.,  as  in  form  No.  969.] 

[Verification  as  in  forms  Nos.  151,  etc.] 


No.  1288. 
Arhitratiou  Bond. 

As  in  form  No.  340  to  [*],  and  from  thence  as  follows : 
That  if  the  above  bounden,  A.  B.,  shall  well  and  truly  sub- 
mit to  the  decision  of  [name  arbitrators],  named,  selected 
and  chosen  arbitrators  as  well  by  and  on  the  part  and  behalf 
of  the  said  A.  B.,  as  of  the  said  C.  D.,  between  whom  a  con- 
troversy exists,  to  hear  all  the  proofs  and  allegations  of  the 
parties,  of  and  concerning  [state  matter  in  controversy],  and 
all  matters  relative  thereto.  But  before  proceeding  to  take 
any  testimony  therein  the  said  arbitrators  shall  be  sworn 
faithfully  and  fairly  to  hear  and  examine  the  matters  in 
controversy  between  the  jDarties  to  these  presents,  and  to 
make  a  just  award  according  to  the  best  of  their  under- 
standing, so  as  the  award  of  the  said  arbitrators  be  made  in 
writing,  subscribed  by  them,  and  duly  acknowledged  or 
jjroved  and  certified  in  like  manner  as  a  deed  to  be  recorded, 
and  ready  to  be  delivered  to  the  said  parties  [or  filed  in  tlie 

county  clerk's  office  {or  name  other  clerk's  office), 

or  delivered  to  one  of  said  parties  or  liis  attorney] "  on  or 

before  the  day  of ,  18 — ,  then  the  above 

obligation  to  be  void,  otherwise  to  remain  in  full  force  and 
virtue. 

And  it  is  hereby  mutuallj^  ngrend,  by  and  between  the 
parties  to  these  presents,  that  judgment  shall  be  rendered 
upon  the  award  which  may  be  made  pursuant  to  this  sub- 


'8ee,  fiirther,  as  to  recovery,  Code  arbitrators  for  their  fees,  under  section 

Civ.    Pro.,    §    2385,   Union    Ins.  Co.  v.  2384,  id.,  A'iil  be  in  most  reHpectsBiui- 

Central  Trust  Co.  (87  Hun,  140).  ilar  to  the  above. 

The  complaint  in  an   action  by  the        ''  See  section  2372,  Code  Civ.  Pro. 


1156  Forms  Relating  to 

mission,  in  the Court  [in  the  county  of ],'  to 

the  end  that  all  matters  \or  the  said  matter]  in  controversy 
in  fhat  behalf,  between  the  said  parties,  shall  be  finally  con- 
cluded, x)ursuant  to  the  provisions  of  the  statute  for  deter- 
mining controversies  by  arbitration,  to  wit :  of  title  eighth 
of  chapter  seventeenth  of  the  Code  of  Civil  Procedure." 
[Signatures  and  seals  as  in  form  No.  340.] 

Sealed  and  delivered  in  the  presence  of . 

[Acknowledgment  as  in  form  No.  340,  or  proof  as  in  form 
No.  588.] 


TITLE  IX. 

FORMS   RELATING  TO  PROCEEDINGS  TO  FORECLOSE  A  MORT- 
GAGE BY  ADVERTISEMENT. 

(Code  Civ.  Pro.,  Ch.  17,  Tit.  9.) 

Ko.  1289.     Notice  of  sale  in  foreclosure  by  advertisement. 

1290.  Notice  of  postponement  of  sale. 

1291.  Affidavit  of  sale. 

1293.     Affidavit  of  publication  of  notice  of  sale  and  postponement. 

1293.  Affidavit  of  aflixing  notice  at  or  near  entrance  to  court  house. 

1294.  Affidavit  of  affixing  copy  of  notice  by  county  clerk  in  book  kept 

by  him. 

1295.  Affidavit  of  service  of  notice  of  sale. 

1296.  Note  by  clerk  upon  margin  of  record  of  mortgage. 

1297.  Bill  of  costs  on  foreclosure  by  advertisement. 

1298.  Petition  for  surplus  moneys  arising  upon  sale. 

1299.  Notice  of  application  for  surplus. 

1300.  Order  of  reference  upon  the  application. 

1301.  Report  of  referee  as  to  priority  of  liens,  etc. 

1302.  Order  upon  report  of  referee. 


No.  1289. 
Notice  of  Sale  in  Foreclosure  by  Advertisement. 

(Code  Civ.  Pro.,  §2391.) 

Whereas,  A..  B.,  of [and  J.  B.,  his  wife],  duly 


'  Insert  this  clause  in  brackets, where  the  statute  applies  to,  see  Code  Civ. 

the  judgment  is  to  be  in  the  Supreme  Pro. ,  §  2380,  and  see  Lorenzo  v.  Deery 

Court.  (26  Hun,  447). 

«  n  Heemn,  that  this  form  may  be  still  The  parties  should  execute  bonds  to 

used  under  the  statute,  certainly  it  can  each  other.     The  obligor  in  one  bond 

be  outside  of  it.    As  to  what  agreements  will  be  the  obligee  in  the  other 


Mortgage  Foeeclosuke  by  Advertisement.    1157 

mortgaged  to  C.  D.,  of ,  all  that  certain,  etc.  [describ- 
ing property  substantially  as  in  mortgage]  [and,  whereas, 
the  said  mortgage  was  duly  assigned  by  the  said  C.  D.  to 

E.  F.,  of ,  and  was,  by  said  E.  F.,  duly  assigned 

to  G.  H.,  of ] ;'  and, 

Whereas,  said  mortgage  is  dated  on  the day  of 

,  18 — ,  and  is  recorded,  with  a  power  of  sale  therein 

contained,  in  the county  clerk's  office,  at 


on  the day  of  ,  18—,  at  o'clock  in 

the ■  noon,  in  book  No.  —  of  mortgages,  at  page  —  ; 

and, 

Whereas,  the  amount  claimed  to  be  due  upon  said  mort- 
gage, at  the  time  of  the  first  publication  of  this  notice,  is 

dollars  [and,  whereas,  the  sum  of dollars, 

secured  by  said  mortgage,  is  not  due  at  the  time  of  the  first 
publication  of  this  notice,  but  is  to  become  due  thereupon : 

Now,  therefore,  notice  is  hereby  given,  that,  by  virtue  of 
the  said  power  of  sale,  and  in  pursuance  of  the  statute  in 
such  case  provided,  the  said  mortgage  will  be  foreclosed 
by  a  sale  of  the  said  mortgaged  premises  [or  by  a  sale  of 
the  part  of  said  mortgaged  premises,  described  as  follows, 

to  wit  (describe  same)],^  at,  etc.,  on,  etc.,  at o'clock 

in  the noon  at  public  auction.^ 

Dated ,  18—. 

CD.,  Mortgagee 
[or  E.  F.,  Assignee  of  the  Mortgagee\*' 

'  State  in  like  manner  the  different  which  case  it  may  be  subscribed  by- 
assignments,  his  attorney  or  agent.     (Code  Civ.  Pro.. 

2  See  Code  Civ.  Pro.,  §  2388.  §  2388.) 

2  A  notice  of  sale,  as  filed  in  the  As  to  manner  in  which  sale  is  to  be 
clerk's  office,  and  as  published  for  the  conducted,  see  Code  Civ.  Pro.,  §  2393, 
first  four  weeks,  was,  by  mistake,  dated  Story  v.  Hamilton  (86  N.  Y.,  428;  aff'g 
April  23,  1858,  instead  of  1868.  Held,  S.  C.  20  Hun,  133),  Ellsworth  v.  Lock- 
that  the  mistake  was  obvious  by  inspec-  wood  (9  Hun,  548). 
tion,  and  could  not  have  misled,  and  As  to  form  of  notice,  etc.,  see  Judd 
did  not  invalidate  the  proceedings,  v.  O'Brien  &  Waddle  ('Jl  N.  Y.,  186), 
(Mowry  v.  Sanborn,  68  N.  Y.,  153;  Hornby  v.  Cramer  (12  How.  Pr.,  490), 
rev'g  S.  C,  7  Hun,  .380.)  Burnet  v.  Denniston  (5  .Joluis.  Ch.,  35), 

■»  Tlie  notice  must  be  subscribed  by  .Jencks  v.  Ale.vander  (11    Paige,  626), 

thepersfin  entitled  to  execute  the  power  Hatlibone  v.  Clarke  (9  Al)b.,  08,  note), 

of  sale,  unless  his  name  distinclly  ;ip-  Klock  v.  (;ronkhite(l  Hill,  108),  Biuico 

pears   in   the   body  of  the   notice,   in  v.  Heed  (16  Barb.,  347),  Cux  v.  Wheeler 


1158  Forms  Relating  to 

No.  .1290. 
Notice  of  Postponement  of  Sale. 

(Code  Civ.  Pro.,  §  2393.) 

The  sale  above  noticed  is  hereby  postponed  to  the 

day  of ,  18 — ,  at  the  same  time  and  place  mentioned 

in  the  foregoing  notice.' 

Dated ,  18—. 


CD.,  Mortgagee 
[or  E.  F.,  Assignee  of  the  Mortgagee'].* 


No.  1291. 
Affidavit  of  Sale. 

(Code  Civ.  Pro.,  §  2396.) 
COFNTY,  SS. : 

J.  S.,  of ,  being  duly  sworn,  says,  that  he  sold  as 

auctioneer,  and  at  public  auction,  the  premises  described 
in  the  annexed  printed  notice  of  sale,  at  the  time  and  place 
therein  mentioned  \or  at  the  time  and  place  to  which  the 
same  was  duly  i^ostponed],   to  wit:    at,  etc.,  on,   etc.,  at 

•  o'clock  in  the noon,^  and  that  G.  H,,  of 

,  then  and  there  purchased  the  [f]  same  for  the 

j)rice  of dollars,  he  being  the  highest  bidder,  and 

that  being  the  highest  sum  bidden  for  the  same  ;  [f]  that 
such  sale  was  in  the  day  time,  and  in  all  respects  lionestly, 
fairly  and  legally  conducted  to  his  best  knowledge  and 

belief.^ 

J.  S. 
[Jurat  as  in  form  No.  46.] 
[Annex  printed  copy  of  notice.*] 

(7   Paige,   251),   Candee  v.  Burke  (1  28 ;  aff'd  8.  C,  141  N.Y.,  302),  Ritter 

Hun,  549),  Davis  v.  N.  Y.  Concert  Co  ,  v.  Devine  (80  Hun,  303). 

Limited   (11  Hun,  492),    Balterman  v.  Tlie   mortgagee  or  his  assignee,  or 

Albright  (122  N.  Y.,  484,  aff'g  S.  C,  the  legal  representative  of  either,  may, 

6  State  Rep.,  334),  People  v.  Burdick  fairly  and  in  good  faith,  purchase  the 

(52    Hun,  348),    Goodhart  v.    Latting  mortgaged    property,    or     any    part 

(53  id.,  26),    Heramer  v.  Hustace  (51  thereof,  at  the  sale.     (Code  Civ.  Pro., 

id.,  457),  Yonker  V.  Tread  well   (4  N.  §  2394.) 

Y.    Supp.,   674),   §   2395,    Code    Civ.  As  to  effect  of  Bale,  Bee  id.,  §  2395. 

Pro.,  as  amended  by  ch.  209  of  Laws  '  This  notice  of  postponement  is  to 

of  1889  ;  Morehouse  v.  Morehoiise  (15  be  annexed  to  and  published  with  the 

Week.    Dig.,    575),   Barley   v.    Roosa  notice  of  sale.     The  publication  is  to 

(35   State    Rep.,   898),    Ostrander  v.  be  once  in  each  week  until  the  time  to 

Hart  (43  id.,  910),  Stanley  v.  Freckle-  which   the   sale   is   finally  postponed, 

ton  (47  id.,  383),  Jenks  v.  Quinn  (137  (See  section  2392,  Code  Civ.  Pro.) 

N.  Y.,  223),  Lewis  v.  Duane  (69  Hun,  '  See  note  4  to  last  form,  No.  1289. 


Mortgage  Foreclosure  by  Advertisement.    1159 

[Or  if  the  sale  was  in  iDarcels  substitute  in  above  between 
(f )  and  (t)  as  follows :  parcel  described  as  follows  of  said 
mortgaged  premises,  to  wit  (describe  parcel),  for  the  sum 

of  dollars  ;  that  I.  J.,  of ,  purcliased  the 

parcel  of  said   mortgaged  jn-emises  described  as  follows, 

to  wit  (describe  same),  for dollars,  etc.,  the  total 

amount  realized  for  said  property  being  the  sum  of 

dollars  J  

No.  "292. 

Affidavit  of  Publication  of  ^  tice  of  Sale  and  Postpoue- 

mei . . 

(Code  Civ.  Pro.,  §g  2385,  2396.) 

County,  ss.  : 

A.  B.,  ot ,  being  duly  sworn,  says,  that  the  an- 
nexed printed  advertisement  was  published  in  the  |  name 

newsx)aper],  a  newspaper  published  in  the  county  of 

wherein  [a  part  of]  the  property  therein  described  to  be  sold 
is  situated,  for  at  least  twelve  w^eeks  immediately  preceding 
the  day  of  sale  therein  mentioned,  and  once  at  least  in  each 
of  those  weeks,  the  first  publication  thereof  being  on  the 
day  of ,  18—. 

[And  deponent  further  says,  that  the  annexed  notice  {or 
notices)  of  post[)onpment  of  said  sale  was  {or  were)  published 
with  the  said  annexed  notice  of  sale  in  the  said  newspaj^er 
as  soon  as  practicable  thereafter,  and  said  juiblication  w^as 
continued  at  least  once  in  each  week,  from  the  day  of  sale 
mentioned  in  said  notice,  until  the  time  to  wdiich  the  said 
sale  is  thereby  (finally)  postponed  and  upon  which  said  sale 
was  made.] 

That  deponent  is,  and  has  been  since  the day  of 

,  18—,  the  pul)lisher  \or  i)rinter]  of  said  newspaper 

[or  the  foreman  or  princijjal  clerk  of  the  jjublisher,  etc.].' 

A.  B. 

[Jura:  as  in  form  No.  40.] 

[Aniit-x  i)riiited  copy  of  notice  of  sale  and  postponements.'] 

•See  as  to  recording'  affidavits  and  534),  Osborn  v.  Merwin  (12  Hun, 332), 

their  effect  as  evidence,  section  23'J8,  Stoi-y  v.  HamilU)ii  (86  N.  Y.,  428), 
Coile  Civ.  Pio.;  as  to  note  to  l)e  inad<!  lIiMniniM-  v.  HuHtace  (.M  Hun,  457). 
upon  inarj^in  of  reconl  f)f  inortf^af^e  \iy  *  .See  iioti?  .')  to  form  No.  )'2'J3. 
clerk,  Bee  section  239U  (id  ),  and  foirn  '  Sc^n  Mowiy  v.  Kanborn  (72  N.  Y., 
No.  129G  ;  and  further,  mh  lo  idlidavit.s,  534),  Howard  v.  Hatch  (29  Hhi1>  297), 
(ill.),  §  2400;  see  also,  Mowry  v.  San-  ami  nee  al»(i,  aH  to  iiiihlicatinn  of  no- 
bom  (G5  N.Y.,  681;  Gb  id.,  153;  72  id.,  tice  of  poHlponement,  Codo  Civ.  l*ro.. 


1160  Forms  Relating  to 

No.  1293. 

Affidavit  of  Affixing  Notice  at  or  near  Entrance  to  Court 

House. 

(Code  Civ.  Pro.,  §§  2388,  2396.) 

County  of ,  ss.: 

C.  D.,  of ,  being  duly  sworn,  says,  that  on  the 

day  of ,  18 — ,  he  affixed  [or  saw  affixed] 

a  true  copy  of  the  annexed  printed  notice  of  mortgage  sale 
in  a  cons])icuous  place,  and  in  a  projier  and  substantial 
manner,  at  [or  near]  the  entrance  to  the  building  where  the 

county  court  of  the  county  of is,  and  then  was 

directed  to  be  held,'  to  wit:  at  the  [court  house]  in  the 

town    [or  city]   of ,   in   said   countj^   [that  being 

the  building  where  said  court  is,  and  then  was,  directed  to 
be  held,  nearest  to  the  premises  described  in  said  notice].* 

C.  D. 

[Jurat  as  in  form  Xo.  46.] 

[Annex  printed  copy  notice  of  sale.*] 


No.  1294. 

Affidavit  of  Affixing  Copy  of  Notice  by  County  Clerk  in 
Book  kept  by  Him. 

(Code  Civ.  Pro.,  g§  2388,  2390,  2396.) 

County,  ss.: 

A.  B.,  of  ,  being  duly  sworn,  says,  that  on  the 

day  of ,  18 — ,  and  at  least  eighty-four 


days   before   the  day  of  sale   mentioned  in  the  annexed 
printed  notice,  he  delivered  a  copy  of  the  annexed  printed 

notice  to  the  county  clerk  of  the  county  of ,  wherein 

[some  part  of]  the  mortgaged  property  is  situated,  and  that 

§  2388,   subd.  1,  as   amended  by  cb.  law   to  be    beld.      (Code   Civ.    Pro., 

730  of  Laws  of  1894;  §  2392  id. ;  and  §  2388,  subd.  2.) 

see  note  1  to  form  No.  1290.  ''Thig  last   clause   in  brackets  is  to 

'  See,  however,  note   5  to  form  No.  to  be  inserted  when  there  are  two  or 

1293.  more    such    buildings    in    the    same 

'In   the   city   of  New   York,   from  county.     (Code  Civ.  Pro.,  §2388.) 

"where,"  as  follow.s  :  where  the  Court  *  See,  however,   amendment  to  sec- 

of    Common   Pleaa   for   the   city   and  tion  2397,  Code  Civ.  Pro.,  by  ch.  399 

county  of  New  York   is   directed   by  of  1882. 


Mortgage  Foeeclosuee  by  Adveetisement.   1161 

on  the  same  day  he  saw  said  county  clerk  aflSx  said  copy  in 
a  book  kept  in  his  office  for  that  purpose,  and  forthwith 
make  and  subscribe  a  minute,  at  the  bottom  of  the  said 
copy,  of  the  time  when  lie  received  and  affixed  it,  and  index 
the  said  notice  to  the  name  of  the  mortgagor.' 

A.  B. 
[Jurat  as  in  form  No.  46.] 

[Annexed  printed  coj)y  notice  of  sale.*] 


No.  1295. 
AffldaYit  of  Service  of  Notice  of  Sale, 

(Code  Civ.  Pro.,  §§  2388,  2389,  2396.) 

County,  ss.: 


A.  B.,  of ,  being  duly  sworn,  says,  that  on  the 

day  of ,  18 — ,  and  more  than  [or  at  least] 


fowrteen  days  before  the  day  of  sale  mentioned  in  the  an- 
nexed printed  notice  of  mortgage  sale,  he  served  the  said 
notice  upon  [naming  parties  served],^  [*]  by  delivering  to, 
and  leaving  with,  each  of  them  personally,  a  true  copy  of 
said  notice. 

That  deponent  is  of  full  age,  viz.:  of  the  age  of  twenty- 
one  years  and  upwards  [or  was  of  the  age  of  (eighteen)  years 
on  the day  of ,  18 — ]. 

[Or  as  above  to  (*),  and  from  thence  as  follows :  by  leav- 
ing a  true  copy  of  said  notice,  addressed  to  said  (name  par- 
ties served),  at  their  respective  dAvelling-houses,  Avith  persons 
of  suitable  age  and  discretion,  to  wit :  of  the  ages  of  at  least 
years  ;  that  deponent  is,  etc.  (as  above).] 

[Or  under  subdivision  two  of  section  2389,  as  above  to  (*), 
substituting,  however,  for  word  fourteen,  words  twenty- 
eight,  and  from  thence  as  follows :  by  depositing  a  copy 

'The  affidavit,  substantially  as  above,  gaged  property,  or  some  part  thereof, 

may  also  be  made  by  the  county  clerk,  is  situated.     (Code  Civ.  Pro.,   §  2388.) 

stating  the  fact  that  he  is  su(;h  county  'See  note  5  to  form  No.  1293. 

clerk,  and  that  said  notice  was  deliv-  'Ah  to  persons  upon  whom  the  notice 

ered    to   him,    etc.     (Code   Civ.    Pio.,  must  be  sei'ved,  see  subd.  4  of  section 

§  2306.)     iSee  al.so.  Van  Vleck  v.  Knos  23S8,  Code  Civ.  Pro.,  and  Van  Schaick 

(88  Hun,  348),  Pitt  v.  Amend   (S4  id  ,  v.  Saunders  (32   Ilun,  .'iir)),  and   cases 

492).  there  cited  ;  Bond    v.  Bond  (HI    Hun, 

The  notice  must  be  delivered  to  the  TiOT)  ;    §    2.389,    Code     Civ.    Pro.;    as 

clerk  of  each  county  wherein  the  mort-  amended  by  ch.  G85  of  Laws  of  1887. 


1162  FoKMS  Relating  to 

{or  copies)  of  said  notice  in  the  post-office  at ,  prop- 
erly inclosed  in  a  postpaid  wrapper  {or  i)ostpaid  wrappers) 
directed  (respectively)  to  M.  N.  at  liis  place  of  residence, 

to  wit :  at ;  to  J.  K.  at  his  place  of  residence,  to  wit: 

at ,  etc.;  that  deponent  is,  etc.  (as  above).'] 

A.  B. 

[Jurat  as  in  form  No.  46.] 

[Annex  printed  copy  notice  of  sale.'] 


No.  1296. 
Note  by  Clerk  upon  Margin  of  Record  of  Mortgage. 

(Code  Civ.  Pro.,  §  2399.) 

The  affidavits  of  sale  of  the  property  described  in  this 
mortgage  are  recorded  in  book  No.  —  of  mortgages,  at 
page  — . 

Dated ,  18—. 

I.  J.,  ClerTc. 


No.  1297. 
Bill  of  Costs  on  Foreclosure  by  Advertisement. 

(Code  Civ.  Pro.,  §  2401,  2402,  2403.) 

Dr. ,  notice  of  sale,  5  f ols. ,  at  25c $1  25 

Copy  same  to  keep  at  1 3c 65 

Copy  notice  for  printer  at  1 3c .   65 

Copy  notice  for  posting  at  court  house 65 

Expense  of  posting  ....   1  00 

Dr.,  affidavit  of  posting  2  fols.  and  copy  at  25c 50 

Copy  notice  annexed  at  13c 13 

Clerk's  fees  on  same ■ 

Dr.,  affidavit  of  posting  in  clerk's  office,  2  fols.  and  copy,  at  18c 52 

Printer  publishing  notice,  13  insertions,  5  fols 21  75 

Printer  publishing  two  postponements  of  sale,  1  fol.  each 1  50 

Printer  publishing  two  additional  insertions  notice  of  sale 5  00 

Dr. ,  affidavit  of  publication  2  fols.  and  a  copy  at  13c 39 

Copy  notice  annexed  at  13c 65 

Copy  notice  to  serve  on  mortgagor  at  13c 65 

Serving  [ten]  notices 10  00 

Dr.,  affidavit  of  service,  2  fols.  and  copy,  at  38c 76 


1  See  section  2397,  Code  Civ.  Pro.,        «  See  note  5  to  form  No.  1293. 
as  to  affidavits,  and  note  5  to  form  No. 
1293. 


Mortgage  Foreclosure  by  Advertisement.   1163 

Copy  notice  annexed,  5  fols.,  at  13c |0  60 

Postages  (slate  items) 

Clerk's  fees  for  searches  (amount  actually  paid) 

Dr. ,  affidavit  of  circumstances  of  sale,  4  fols.  and  copy,  at  38c  1  52 

Copy  printed  notice  annexed 65 

Superintending  sale 10  00 

Recording  affidavits  (amount  actually  paid) 

Oaths  to  5  affidavits  at  12c 60 

County,  ss.: 

J.  M.,  of ,  being  duly  sworn,  says,  that  lie  is  the 

attorney  for ,  the  mortgagee  [oj'  assignee  of  the 

mortgagee],  executed  by to  ,  and  which 

has  been  duly  foreclosed  under  the  statute. 

That,  according  to  the  best  of  deponent's  knowledge  and 
belief,  the  several  disbursements  charged  in  the  bill  of  costs 
hereto  annexed  have  been  actuaLy  and  necessarily  paid  or 
incurred. 

That  the  copies  of  papers  charged  therein  were  actually 
and  necessarily  used,  or  obtained  for  use. 

That  such  bill  of  costs  contains  no  charge  for  any  draft  or 
copy  of  any  affidavit,  or  other  jiaper,  which  has  not  been 
made,  or  for  any  other  service  which  has  not  been  per- 
formed, except  such  services  as  are  allowed  by  law  to  be 
taxed  prospectively,  and  that  the  number  of  folios  contained 
in  the  draft,  or  in  the  copies  of  said  papers,  are  not  over- 
charged in  such  bill.' 

J.  M. 

[Jurat  as  in  form  No.  46.] 


No.  1298. 
Petition  for  Surplus  Money  Arising  upon  Sale. 

(Code  Civ.  Pro.,  §  2405.) 

To  the  Supreme  Court : 

The  petition  of  A.   B.,   of  ,  respectfully  shows, 

that  heretofore  proceedings  were  taken  by  C.  D.,  pursuant 
to  title  ninth  of  chapter  seventeenth  of  the  Code  of  Civil 
Procedure,  for  the  sale  of  \\w  rf^al  ])rf)perty  described  as 


'  See  section  3267,  Code  Civ.  Pro.  ;  under  thowe  Hectiona.  See,  al.so,  Fer- 
aiid  aH  to  taxation  of  cosis,  see  tei;tionn  guson  v.  Wooley  (9  Civ.  Pro.  U.,  230). 
24C3,    3202-3268,    id  ,  and    w-e    fornm 


1164  Forms  Relating  to 

follows,  to  wit  [describe  same],  in  foreclosure  of  a  mortgage 

executed  by to ,  dated ,  18 — ,  and 

recorded  in county  clerk's  otiice  on  the 

day  of ,  18 — ,  at o'clock  in  the ■ 

noon,  in  book  No.  —  of  mortgages,  at  ])age  — ,  and  a  sale 

of  said  i^roperty  was  made  in  said  proceedings  on  the 

day  of -,  18—. 

That  a  surplus  remained  of  the  proceeds  of  said  sale, 

amounting  to dollars,  over  and  above  the  sum  due, 

and  to  grow  due,  upon  said  mortgage,  and  the  costs  and 

expenses  of  the  said  foreclosure,  and  that  on  the 

day  of ,  18 — ,  the  attorney  for  the  said  mortgagee 

[or  for  E.  F.,  the  assignee  of  said  mortgage],  by  whom  said 
mortgage  was  foreclosed,  paid  into  this  court,  and  to  the 
county  treasurer  of county,  the  said  surjjlus. 

And  your  petitioner  furtlier  shows,  that  at  the  time  of 
said  sale  he  had  an  interest  in  [or  lien  upon]  the  said  prop- 
erty [or  in  (or  upon)  a  portion  of  said  property,  to  wit  (de- 
scribing same)],  said  interest  [or  lien]  being,  by  reason  of 
[state  nature  of  interest  or  lien] ;  and  your  petitioner  claims 
that  he  is  entitled  to  said  surplus  moneys  [or  to  a  part  of 
said  surplus  moneys]  by  reason  of  his  said  interest  in  [or 
lien  upon]  said  property  ;  and  your  petitioner  prays  for  an 
order  of  this  court  directing  the  payment  to  him  of  said 
surplus  moneys  [or  of  so  much  of  said  surplus  moneys  as 
may  be  necessary  to  satisfy  his  said  interest,  or  lien]. 

Dated ,  18—. 

A.  B. 

[Yerification  as  in  form  No.  52.] 


No.  1299. 
Notice  of  Application  for  Surplus, 

(Code  Civ.  Pro.,  §2406.) 

[Title  of  proceeding.] 

Sirs— Take  notice,  that  the  undersigned  will  apply  at,  etc., 
on,  etc.,  for  an  order,  pursuant  to  the  prayer  of  his  petition, 

filed  in  the county  clerk's  office  on  the 

day  of ,  18—,  directing  the  payment  to  him  of  [a 

part  of]  the  surplus  moneys  arising  upon  the  sale  of  the 


MoETGAGE  Foreclosure  by  Advertisement.    1165 

property  described  in  the  said  petition,  a  copy  of  which  is 
herewith  served  upon  you,  and  lor  such  other  and  further 
relief  as  may  be  projDer. 

Dated ,  18—. 

Yours,  etc., 

M.  C,  Attorney  for  Petitioner. 
[Office  address.'] 
To  [name  parties  served]. 


No.  1300. 
Order  of  Reference  upon  the  Application. 

(Code  Civ.  Pro.,  §  2407.) 

[At,  etc.,  as  in  form  No.  80.] 
[Title  of  proceeding.] 

Upon  the  presentation  of  the  petition  of  A.  B.,  dated 

,  18 — ,  which  was  filed  in  the •  county  clerk's 

office  on  the day  of ,  18 — ,  with  proof  of 

due  service  of  notice  of  this  application  upon  each  person 
who  has  filed  a  like  petition,  and  also  upon  each  person 
upon  whom  a  notice  of  sale  was  served,  as  shown  in  the  affi- 
davit of  sale  [or  ui3on  his  executor  or  administrator],  and 
on  motion  of  M.  F.,  for  the  said  x:)etitioner,  and  after  hear- 
ing, etc.,  and  on  reading  [name  opposing  papers] : 

It  is  hereby  ordered,  that  I.  J.,  of ,  counselor  at 

law,  be  and  he  is  hereby  appointed  referee,  to  ascertain  and 
report  the  amount  due  to  the  petitioner,  and  to  each  other 
person,  which  is  a  lien  upon  the  surplus  money  mentioned 
in  said  petition  of  A.  B.,  and  the  priorities  of  the  several 
liens  thereupon. 

No.  1301. 
Report  of  Referee  as  to  Priority  of  Liens,  etc. 

(Code  Civ.  Pro.,  g  2407.) 

[Title  of  proceeding.] 

I,  the  undersigned  refen^e,  ;ii)i)ointed  by  order  of  this 
court,   dated .    18 — ,    to  ascertain  and   report  the 


'  See  note  2  to  fomi  No.  122. 


1166  Forms  Relating  to 

amount  due  to  A.  B.,  the  petitioner  in  this  proceeding,  and 
to  each  otlier  person,  which  is  a  lien  upon  the  snrphis  moneys 
arising  upon  the  sale  of  the  premises  described  in  tlie  said 
petition,  and  the  priority  of  the  several  liens  thereupon,  do 
respectfully  report  [proceed  substantially  as  in  form  No. 
716,  making  necessary  changes  to  suit  the  case].' 


No.  1302. 
Order  upon  Report  of  Referee. 

(Code  Civ.  Pro.,  §2407.) 

[At,  etc.,  as  in  form  No.  80.] 
[Title  of  proceeding.] 

On  reading  and  filing  the  report,  dated ,  18—,  of 

I.  J.,  referee,  appointed  herein  by  order  of  this  court,  dated 

,  18 — ,  from  which  it  appears  that  A.  B.  is  entitled 

to  the  [whole]  of  the  surplus  moneys  arising  upon  the  sale 
of  the  real  property  described  in  his  petition,  filed  in  the 

county  clerk's  office  on  the day  of , 

18 — ,  which  surplus  has  been  paid  into  court  and  to  the 

county  treasurer  of county  \or  make  other  recitals 

according  to  the  report],  and  it  appearing  that  due  notice 
of  this  motion  has  been  given  to  [name  parties  served] : 

Now,  on  motion  of  M.  P.,  counsel  for  said  petitioner,  and 
after  hearing,  etc.  \or  no  one  appearing  to  oppose],  and  on 
reading  [name  any  other  motion  papers] : 

It  is  hereby  ordered,  that  the  said  report  be  and  the  same 
is  hereby  confirmed,  and  that  said  county  treasurer  pay,  etc. 
[here  insert  provisions  for  distribution  substantially  as  in 
form  No.  718,  or  other  similar  provisions,  as  may  be  re- 
quired].'' 

»See,  also,  forms  and  notes  referred  v.  O'Hare  (129   N.  Y.,  480),  Matter  of 

to  in  note  2  to  next  form  No.  1302.  Stilwell  (139  N.  Y.,  837,  aflTd  S.  C.  68 

"See,  also,  proceeding-s  for  surplus  Hun,  407). 
moneys,  in  action   to   foreclose   mort-        As  to  the  cases  in  which  these  pro- 
gage,  forms   Nos.  709,    710,   etc.,  and  ceedings  for  surplus  do  not  apply,  see 
notes  to  those  forms  ;   and  see   Floyd  section  2408,  Code  Civ.  Pro. 
V.  Clark  (16  Daly,  528),  Quackenbush 


Change  of  Name.  1167 

TITLE  X. 

FORMS   RELATING  TO  PROCEEDINGS  TO  CHANGE  THE   NAME  OF 
AN  INDIVIDUAL  OR  CORPORATION. 
(Code  Civ.  Pro.,  Ch.  17,  Tit.  10.) 
No.  1302a.  Petition  by  corporation  to  assume  another  corporate  name. 

1303.  Petition  by  person  of  full  age  for  leave  to  assume  another  name. 

1304.  Order   upon   petition,   form   No.  1303,  granting  such  leave,  pro- 

vided, etc. 
1304a.  Order  upon  petition  of  a  corporation,  form  No.  1302a. 
1304b.  Notice  of  presentation  of  petition  of  corporation,  form  No.  1304a,^ 

for  leave  to  assume  another  name. 

1305.  Petition  by  infant  for  change  of  name. 

1306.  Affidavit  of  publication  of  order. 


No.  1302a. 

Petition  by  Corporation  to  Assume  Another  Corporate  Name. 

(Code  Civ.  Pro.,  §  2111.) 

To  {substantially  as  inform  No.  1303};^ 

The  petition  of  the  [name  of  corporation]  respectfully 
shows,  That  it  is  a  domestic  banking,  etc.  [stock]  corpo- 
ration duly  incorporated  under  the  laws  of  the  state  of 
New  York,  to  wit :  under  [state  law  under  which  it  was 
incorporated],  located  and  doing  business  at  the  town  [or, 

city]  of ,  in  the  county  of ,  in  this  state, 

in  which  town  [or,  city]  its  principal  business  office  is 
situated  [or,  in  which  its  principal  operations  are  (or,  here- 
tofore have  been)  conducted.] 

That  your  petitioner  desires  to  assume  another  name, 
than  that  now  held  by  it,  and  that  the  name  which  it 
proposes  to  assume  is  The  (state  same) ; 

That  the  grounds  of  its  application  for  such  change  of 
name  are  as  follows,  to  wit:  (state  same). 

[That  this  petition  has  been  authorized  by  a  resolution 
of  the  board  of  directors    of  your  said  petitioner,  (and 

'  As  to  courts  to  which  petition  of  sections  2411  and  2412  of  Code  of  Civil 
corporation  for  leave  to  asHume  another  Procedure,  as  amended  by  chapter 
corporate  name  is  to  be  presented,  see     360  of  Laws  of  1893. 


1167a  Forms  Relating  to 

approved  by  the  superintendent  of  banks ;  or,  by  the 
superintendent  of  insurance;  or,  by  the  board  of  railroad 
commissioners,  as  will  appear  from  the  certificate  of  such 
approval  hereto  annexed) J,-^ 

[That  the  certificate  of  the  secretary  of  state  of  the 
state  of  New  York  is  annexed  to  this  petition,  as  required 
by  section  2411  of  the  Code  of  Civil  Procedure,  marked 
-  Schedule  A."]  • 

And  your  petitioner  prays,  etc.  (substantially  as  in  form 
No.  1303). 

Dated ,  1—. 

The  (name  of  corporation), 

[By  A.  M.,  President,  etc.\ 

[Annex  "  Schedule  A"  certificate  of  secretary  of  state, 
and  other  certificates,  when  required.] 

State  op  New  York,  > 

C(  ss,  I 
ouNTr.       S 


A.  M.,  of ,  Ijcing  duly  sworn,  says,  that  he  is  the 

president  of  the  (name  of  corporation) ;  that  he  has  read 
the  foregoing  petition  subscribed  hy  him,  and  that  the 
same  is  true  to  the  knowledge  of  deponent,  except  as  to  the 
matters  therein  stated  to  be  alleged  upon  information  and 
belief,  and  that  as  to  such  matters  he  believes  it  to  be  true. 

A.  M. 

(Jurat  as  in  form  No.  46.) 

^  This  clause  is  to  be  inserted  in  case  2412,  as  amended  by  ch.  366  of  Laws 

of  a  coi-poration  having-,  respectively,  of  1893.) 

bankiiii,''  jioweis  oi*  the  jiower  to  make  ^  As  to  cases  in  which  this  certificate 

loans  upon  ])le<ig'es  or  deposits,  or  to  is  required  to  be  annexed,  see  section 

make  insurances,  or  if  it  be  a  railroad  2411  of  Code  of  Civil  Procedui-e.     See, 

corporation.     (Code  Civ.  Pro.,  §§  2411,  also.  Matter  of  United  States  Mortgage 

Company  (83  Hun,  572). 


Change  of  Name.  1167b 

No.  1303. 

Petition  hy  Person  of  Full  Age  for  Leave  to  Assume  Another  Name. 

(Code  Civ.  Pro.,  §  2412  ) 

To  the  County  Court  of  the  county  of [or  to  the  Supreme 

Court  or  to  the  City  Court  of  New  York\ :  * 

The  petition  of  A.  B.  [*]  respectfully  shows,  that  he  is 
of  full  age,  to  wit :  of  the  age  of  twenty-one  years  and 

upwards,  and  resides  in  the  town  [or  city]  of ,  in 

the  county  of ,  in  this  State. 

That  he  desires  to  assume  another  name  than  that  now 
held  by  him,  and  that  the  name  Avhich  he  proposes  to 
assume  is  C.  D. 

That  the  grounds  for  his  application  for  such  change  of 
name  are  as  follows,  to  wit  [state  same]. 

That  he  is  married  [or  is  unmarried]. 

That  there  are  no  judgments  rendered,  or  actions  pend- 
ing against  him  [or  that  the  following  actions,  and  no 
others,  are  pending  against  him,  to  wit  (state  same),  and 
that  the  following  judgments,  and  no  others,  have  been 
rendered  against  him,  to  wit  (state  same)]." 

That  the  following  commercial  paper  is  outstanding  in 
the  said  name  sought  to  be  abandoned  by  him,  to  wit 
[describe  same]  [or  that  no  commercial  paper  is  outstand- 
ing in,  etc.]."^ 

That  your  petitioner  was  born  in  the of , 

in  the  county  of  ,  and  State  of ,  and  the 

name  of  his  father  is  [or  was]  M.  B.,  and  that  of  his  mother 
is  [or  was]  F.  B.'^ 

And  your  petitioner  prays  the  order  of  this  court,  for 
which  no  previous  application  has  been  made,^  granting 
liim  leave  to  assume  the  name  of  C.  D.  in  place  of  that 
of  A.  B.,  his  present  name,  pursuant  to  the  provisions  of 
title  tenth  of  chapter  seventeenth  of  the  Code  of  Civil 
Procedure,  and  for  such  other  relief  as  may  be  proper. 

Dated ,  18—.  A.  B. 

[Verification  as  in  form  No.  52.]    

^As  to  the  courts  lo  which  ihe  ai»-  (  h.  yjti  of  Lawn  of  lby5,  takiiij,'  ettect 

plication  must  be  made,  Bee  Code  Civ.  Jan.  1,  189tj,  by  which  the  application 

Pro.,  §§2410,  2411,  aa  amended.     See  i.s  to  be  made    by  a   resident    of  the 

ch.  Htitj  of  Laws  of  1893,  and  chapter  State  to  the  county  coint  of  the  coiinty 

2fJ4  of  Law.sof  1894,  ainendirif,'  title  10  in  which  he  n-.sideH,  or,  if  he  resides 

of  chap.  13of  Codeof  Civ.  Pro.     The.se  in  the  city  of  New  York,  either  to  the 

amendments  relate  jjHncipally  to  thr;  Kupreine  Cotirt  or  to  the  city  court  of 

chanj^e  of  nameof  aorixiiation.    ^ce,  N»'W^ork. 
also,  amendments  to  section  2410  by         '  See  note  2  to  form  No.  209. 


1168  Forms  Relating  to 

No.  1304. 

Order  upon  Petition,  forms  Nos.  1303,  1305,   Granting  sucli 
Leave  Provided,  eto. 

(Code  Civ.  Pro.,  §  2414.) 

[At,  etc.,  as  in  form  No.  80.] 
[Title  of  proceeding.] 

Upon  reading  and  filing  the  petition  of  A.  B.,  of,  etc. 
[an  infant,  by  E.  F.,  (his)  general  guardian  (or  guardian 

of  his  person,  or  his  next  friend)],  dated ,  18 — , 

praying  for  leave  to  assume  the  name  of  C.  D.  in  place  of 
his  present  name  |and  the  affidavits  of  G.  H.  and  J.  K., 
presented  therewith  (and  on  filing  proof  of  due  service  of 
notice  of  the  presentation  of  said  petition  at  this  time  and 
place,  upon  the  proper  parties)],''  and  on  motion  of  C.  M., 
counsel  for  said  petitioner  [and  after  hearing,  etc.],  and 
the  court  being  satisfied,  by  said  petition  [and  affidavits], 
that  there  is  no  reasonable  objection  to  the  petitioner's 
assuming  the  name  proposed  [and  that  the  interests  of 
said  (naming  infant)  will  be  substantially  promoted  by 
said  change]': 

It  is  hereby  ordered,  that  the  said  A.  B.  be  and  he  is 
hereby  authorized  to  assume  the  said  name  of  C.  D.  in  place 

of  his  present  name  of  A.  B.,  on  the day  of , 

18 — ,*  upon  his  complying  with  the  provisions  of  section 
2414  of  the  Code  of  Civil  Procedure,  viz. :  that  he  cause  a 
copy  of  this  order  to  be  published  within  ten  days  after  this 
order  is  made  in  the ,  a  newspaper  published  in  the 

»  See  In  re  Hamilton  (10  Abb.  N.C,  case,   see  Code  Civ.  Pro.,  §  2414,   as 

79  [N.  Y.  C.  P.,  Sp.  Tm.]),  that  these  amended  by  ch.  946  of  Laws  of  1895, 

statements  are  necessary  in  the  case  taking  effect  Jan.  1,  1896. 

of  an  adult.  *  Not  less  than  thirty  days  after  the 

^  This  notice  is  to  be  given  in  case  entry  of  the  order, 

the  application  is  made  by  an  infant  ^  Insert  this  clause  in  case  the  ap- 

by  hia  next  friend.     As  to  the  parties  jilication  is  made  on  behalf  of  an  infant. 

upon  whom  it  is  to  be  served  in  such  (Code  Civ.  Pro.,  §  2414.) 


Change  of  Name.  1169 

county  of ,  and  that  within  ten    days    after    the 

making  of  this  order  he  cause  it  to  be  entered  and  the 
papers  upon  which  it  was  granted,  and  an  affidavit  of  the 
publication  thereof,  as  above  directed,  to  be  filed  and  re- 
corded in  the  county  clerk's  office  of  the  said  county  of 

[or  in  the  office  of  the  clerk  of  the  city  court  of 

New  York],^  and  that  after  the  said  requirements  are 
complied  with  the  said  petitioner  must,  on  and  after  the 

said day  of ,  18 — ,  be  known  by  the  name 

which  he  is  here  hereby  authorized  to  assume  and  by  no 
other  name.^ 

No.  1304a. 
Order  upon  Petition  of  a  Corporation,  form  No.  1302a. 

(Code  Civ.  Pro.,  §2414.) 

*At,  etc.  I  as  in  form  No.  80]. 
[Title  of  proceeding.] 

Upon  reading  and  filing  the  petition  of  the  [name  of 
corporation],  a  domestic  [stock]  banking,  etc.,  corporation 
incorporated  under  the  laws  of  the  State,  to  wit :  [stating 
act  of  incorporation],  located  and  doing  business  at,  etc. 
[as  in  petition  form  No.  1302aJ,  praying  for  leave  to 
assume  the  name  of  the  [state  same],  in  place  of  its  pres- 
ent corporate  name,  and  the  court  being  satisfied  by  said 
petition  [and  by  the  certificate  presented  therewith]  that 
said  petition  is  true,  and  that  there  is  no  reasonable  ob- 
jection to  the  change  of  name  proposed,  and  that  said 
petition  has  been  duly  authorized],  [and  that  due  notice 
of  the  presentation  of  said  petition  has  been  made   and 

given  as   required   by  law],   and  on   motion  of  , 

counsel  for  said  petitioner  [and  after  hearing,  etc.]. 

It  is  hereby  ordered  and  directed  that  the  said  [name 
of  petitioner]  be  and  it  is  hereby  authorized  to  assume  the 

'  Insert  clause  in  brackets  where  the  ceeding-  theretofore  or  thereafter  corn- 
order  is  made  by  the  city  court  of  menced  against  the  person  whose 
New  York.  (Code  Civ.  Pro.,  §  2414.)  name  18  changed.  Bee  section  2416 
Bee  amendments  to  that  section  by  ch.  (id.). 

866  of  1893.  As  to  return  to  be   made   by  county 

*  See  section  2414,  Code  Civ.  Pro.  clerks,  etc.,  of  changes  made  of  names. 

As  to  the  effect   of  the   change  of  see  flection  2417  (id.), 
name  upon  an  action  or  special  pro- 

147 


1169a  Forms  Relating  to 

name  of  the  [insert  same]  in  place  of  its  present  name,  on 

the day  of ,  1 ,  upon  its  complying  with 

the  provisions  of  section  2414  of  the  Code  of  Civil  Pro- 
cedure, viz.  :  that  this  order  be  entered  and  the  papers  on 
which  it  was  granted  be  filed  within  ten  days  hereafter 

in  the  county  clerk's  office  of  the  county  of ,  and 

that  a  certified  copy  of  this  order  shall,  within  ten  days 
after  the  entry  thereof,  be  filed  in  the  office  of  the  Secre- 
tary of  State  ;  and  also  in  the  office  of  the  superintendent 
of  banks  [or,  of  the  superintendent  of  insurance ;  or  of 
the  board  of  railroad  commissioners],  and  that  a  copy  of 
this  order  be  published  within  ten  days  after  the  entry 

thereof  in  the  ,  a   newspaper   published   in   the 

county  of ,  once  in  each  week  for  four  successive 

weeks,  and  that  after  the  said  requirements  are  complied 

with,  the  said  petitioner  must,  on  and  after  the-  said 

day  of ,  1 ,  be  known  by  the  name  which  it  is 

hereby  authorized  to  assume  and  by  no  other  name.^ 


No.  1304b. 

Uotice  of  Presentation  of  Petition  of  Corporation,  form  No. 
1301a,  for  Leave  to  Assume  Another  Name. 

(Code  Civ.  Pro.,  §  2413.) 

Notice  is  hereby  given,  pursuant  to  the  provisions  of 
section  2413  of  the  Code  of  Civil  Procedure,  that  a  peti- 
tion will  be  presented  to  [naming  court],  at  a term 

thereof  to  be  held  at,  etc.,  on,  etc.,  by  the  [name  of  cor- 
poration], for  leave   to   assume  the  name  of  the  [insert 

'  The  provisions  in  regard  to  this  See  as  to  publication  of  notice  of  i>re- 
order  were  contained  in  sections  2413  sentation  cf  petition,  said  section  2413, 
and  2414  of  the  Code  of  Civil  Proce-  as  amended.  For  form  of  notice  of 
dure,  as  amended  respectively  by  presentation  of  petition,  see  form  No. 
chapter  264  of  Laws  of  1894,  and  by  1304b.  See,  also,  provisions  of  sec- 
chapter  946  of  Laws  of  1895,  the  lat-  tion  2415  id.,  as  to  taking-  effect  of 
ter  chapter  taking-  effect  Jan.  1,  1896.  order. 


Change  of  Name.  llG9b 

•same],  and  that  application  will  be  made  to  said  court, 
upon  such  presentation  for  such  leave,  and  for  such  other 
and  further  relief  as  may  be  proper  and  necessary.^ 

Dated ,  1 . 

M.  N.,  Attorney  for  the  [name  of  corporation]. 

[Office  address.] 


No.  1305. 


Petition  of  Infant  for  Change  of  Name. 

(Co.le  Civ.  Pro.,  §§  2412,  2413.) 

As  in  form  No.  1303  to  [*],  and  from  thence  as  follows: 
An  infant,  by  E.  F.,  his  general  guardian  [or  the  guardian 
of  his  person,  or  his  next  friend],  respectfully  shows : 

That  said  A.  B.  is  an  infant  under  the  age  of  twenty- 
one  years,  and  became  of  the  age  of years  on  the 

day  of ,  18 — ,  and  that  said  infant  resides 

in  the  town  [or  city]  of ,  in  the  county  of , 

in  this  State. 

That  the  said  A.  B.  desires  to  assume  another  name 
than  that  now  held  by  him,  and  that  the  name  which  he 
proposes  to  assume  is  C.  D. 

That  the  grounds  for  his  application  for  such  change  of 
name  are  as  follows  [state  same],  and  that  your  petitioner 
verily  believes  that  tlie  interests  of  said  infant  will  be 
substantially  promoted  by  the  change  of  his  name  as 
aforesaid, 

[That  the  name  of  the  father  of  said  infant  is  M.  B.,  who 
resides  at,  etc.  (or  that  the  father  of  said  infant  is  dead, 
(or,  cannot  be  found),  and  that  F.  B.  is  the  mother  of  said 

'See  Bection  2413  of  Code  Civ.  Pro.,     1894,  uh  to  this  notice  and   i)i>l)lii;ati()n 
as  amended  Ly  chapter  204  of  LawH  of    thereof. 


1170  Forms  Relating  to 

infant  and  resides  at,  etc. ;  or  that  the  ftither  and  mother 
of  said  infant  are  both  dead  {or  cannot  be  found),  and  that 
I.  J.  is  the  general  guardian  of  said  infant;  or  the  guar- 
dian of  said  infant's  person,  and  resides  at,  etc.,  or  that 
said  infant  has  no  general  guardian  or  guardian  of  his  per- 
son, or  father  or  mother  residing  in  this  State.  )]^ 

And  your  petitioner  prays  the  order  of  this  court,  grant- 
ing leave  to  said  infant  to  assume  the  name  of  C.  D.,  in 
place  of  that,  etc. 

[Conclude  as  in  form  No.  1303.] 

Dated ,  18—. 

A.  B.  [by  E.  F..  his  General  Guardian,  etc.']. 

[Verification  by  guardian,  etc.,  as  in  form  No.  52.] 


No.  1806. 
Affidavit  of  Publication  of  Order. 

(Code  Civ.  Pro.,  §  3414.) 

County,  ss.  : 


M.  N.,  of ,  being  duly  sworn,  says,  that  he  is, 

and  has  been,  since  the day  of ,  18 — ,  the 

publisher  [or  printer  {or  one  of  the  publishers,  etc.)]  of  the 

,  a  newspaper  published  at ,  in  the  county 

of ,  and  that  the  annexed  order  has  been  published 

in  the  said  newspaper  on  the day  of ,  18 — , 

(or,  once  in  each  week  for  four  successive  weeks,  the  first 

publication  thereof  being  made  on  the day  of , 

1 .)-  M.  N. 

[Jurat  as  in  form  No.  46.] 

[Annex  copy  of  order.] 

TITLE  XI. 

FORMS  RELATING  TO  THE  VOLUNTARY  DISSOLUTION  OF  A 

CORPORATION. 

(Code  Civ.  Pro.,  Ch.  17,  Tit.  11.) 

No.  1307.     Petition  by  majority  of  trustees,  etc.,  for  dissolution  of  a  corporation. 

1308.     Petition  for  dissolution  of  corporation  in  case  the  directors,  etc., 

are  equally  divided  respecting"  its  management. 
1809.     Order  to  show  cause  on  presentation  of  petition. 

*  Insert  these  statements  in  brackets  '  Insert  the  words  once,  etc.,  in  pa- 

■where  the  application  is  made  by  a  renthesis  in  the  case  of  a  corporation 

next  friend.     (Code  Civ.  Pro.,  §  2413,  after   word   newspaper,  and  omit   in 

as  amended   by   ch.   264  of  Laws  of  that  case   the   other  words  following 

1894.  that  word.     (Code  Civ.  Pro.,  §  2414.) 


VoLUXTAKY  Dissolution  of  CoKroKATioN.      1171 

No.  1310.     Schedule  to  be  annexed  to  the  petition. 

1311.  Referee's  report. 

1312.  Notice  of  appearance  to  make  persons  appearing,  parties  to  the  pro- 

ceeding. 

1313.  Notice  of  motion  for  final  order. 

1314.  Final  order  dissolving  corporation,  etc. 


No.  1307. 

Petition  by  Majority  of  Trustees,  etc.,  for  Dissolution  of  a 

Corporation. 

(Code  Civ.  Pro.,  §§  2419,  2421.) 

To  [name  of  court] : ' 

The  petition  of  [names  of  directors,  trustees  or  other  offi- 
cers'petitioning]  : 

That  they  are  [*]  a  majority  of  the  directors,  etc.,  of  the 
[name  of  corporation],  a  corporation  created  by  [or  under] 
tlie  laws  of  this  State,  to  wit :  by  [or  under]  An  act,  etc., 

passed ,  18 —  [state  the  act  by  or  under  which  the 

corporation  was  created],  for  the  purpose  of  [state  same]. 

[f]  That  they  have  discovered  that  the  stock,  effects  and 
other  property  of  said  corporation  are  not  sufficient  to  pay 
all  just  demands  for  which  it  is  liable,  or  to  afford  a  reasona- 
ble security  to  those  who  may  deal  with  it  [or  that  they 
deem  it  beneficial  to  the  interests  of  the  stockholders  that 
the  said  corporation  should  be  dissolved  for  the  following 
reasons,  to  wit  (state  same)]. 

That  the  principal  office  of  the  said  corporation  is  located 

at  the  town  [or  city]  of ,  in  the  county  of , 

in  this  State. 

That  a  schedule  is  annexed  to  this  petition,  marked  "A," 
containing  the  following  matters,  as  far  as  your  i)etitioners 
know,  or  have  the  means  of  knowing,  the  same  [here  insert 
the  paragraphs  numbered  respectively  from  1  to  7,  both  in- 
clusive, of  section  2421  of  the  Code  of  Civil  Procedure]. 

Wherefore  your  petitioners  pray  for  a  final  order  of  this 


'The  petition  i.s  to   he  ]> resented  to  t«rm    of  that   court   held  within    the 

the  Hii|)renie  Court.      (Cixh;  Civ.  I'l-o.,  judicial  district,  enihnicinjr  tht>  county 

§  241it,  as  amended  by  <;h.  IHO  of  LawH  whi-ifiti  the  piinciptd  ofhci;  of  \\\v.  cor- 

of    ISO.i,    takirif^-    eff^-ct    Jan.    1,    ISdC.  pdratiou    is    jocnt.'d.      (Id..    §2423,  as 

The  papers  must  be   presented  at  a  amemled  by  same  chaptei.) 


1172  Forms  Relating  to 

court  dissolving  the  said  corporation,  as  prescribed  in  title 
eleventh  of  chapter  seventeentli  of  the  Code  of  Civil  Pro- 
cedure, and  for  such  other  and  further  relief  as  may  be 
proper.' 

Dated ,  18—. 

[Signatures  of  petitioning  directors,  etc.] 

County,  ss.  : 


[Names  and  residences  of  directors,  etc.],  being  severally 

duly  sworn,  each  for  himself  says,  that  the  matters  of  fact 

stated  in  the  foregoing  petition,  subscribed  by  them,  and  the 

schedule  thereto  annexed  and  therein  referred  to,  marked 

"A,"  are  just  and  true,  so  far  as  he  knows,  or  has  the  means 

of  knowing,  the  same. 

[Signatures  of  petitioners.] 

[Jurat  as  in  form  No.  46.] 

[Annex  schedule,  form  No.  1310.] 


No.  1308. 


Petition  for  Dissolution  of  Corporation  in  Case  the  Direct- 
ors, etc.,  are  Equally  Divided  Respecting  its  Manage- 
ment. 

(Code  Civ.  Pro.,  §g  2420,  2421.) 

As  in  form  No.  1307  to  [*],  and  from  thence  as  follows : 
Trustees  [or  directors]  of  the  [name  of  corporation],  a  cor- 
poration created  for  the  purpose  of  [state  same]  under  a 
general  statute  of  this  State  for  the  formation  of  corpora- 
tions and  having  an  even  number  of  trustees  or  directors, 
to  wit : directors,  etc. 

That  the  trustees,  etc.,  of  said  corporation  are  equally 
divided  respecting  the  management  of  its  affairs,  and  the 
entire  stock  of  the  said  corporation,  to  wit : shares 

^Asto  statements  of  petition,  and  164),    Matter  of   Hamilton   Park  Co. 

generally  as  to  these  proceedings,  see  (id.  375),   Matter  of  Schuyler's  Steam 

Matter  of  Pyrolusite  Manganese  Co.  Tow  Boat  Co.  (180  N.  Y  ,  169),  Hege- 

(29  Hun,  429;  S.  C,  3  Civ.  Pro.  Rep.,  wisch  v.  Silver  (140  id.,  414),   People 

270),  Chamberlain  v.  Rochester,  etc.,  v.  Seneca  Lake  Grape  &  Wine  Co.  (52 

Co.  (7  Hun,  557),  Matter  of  Dubois  (15  Hun,   174),  Matter  of  Dramatic  Fund 

How.  Pr.,  7),  Matter  of  Christian  Jan-  Association  (22  Abb.  N.  C,  231),  In  re 

sen  Co.,  Limited  (128  N.  Y.  5f50),  Drew  Livingston's    Sportsmen's    Ass'n   (17 

V.  Longwell   (81  Hun,  144),  Matter  of  State   Rep.,    879),    In  re  Importers', 

Hitchcock  Mfg.  Co.   (1  App.  Div.  R.,  etc.,  Exchange  of  New  York  (18  State 


Forms  Kelating  to 


1172a 


Rep.,  195;  132  N.  Y.,  212),  Matter  of 
the  Mart  (22  Abb.  N.  C,  227),  Re 
Santa  Eiilalia  Silver  Min.  Co.  (21  State 
Rep.,  89,  Matter  of  E.  M.  Boynton 
Saw  &  File  Co.  (34  Hun,  369),  Matter 
of  Binghamton  Gen.  Electric  Co.  (143 
N.  Y.,2()l),  Skinner  v.  Smith  (56  Hun, 
437),  Peojile  v.  Remington  &  Sons 
(54  id.,  480),  Matter  of  Home  Provi- 
dent Safety  Fund  Ass'n  (129  N.  Y., 
288);  ch.  304  of  Laws  of  1894  amd'g 
§  2420  Code  Civ.  Pro. ;  ch.  258  of  Laws 
of  1894,  amd'g  §  2427  id.;  Matter  of 
N.  Y.  Oxyq-en  Co.  (24  Civ.  Pro.  R., 
398),  Matter  of  Lewis  &  Fowler  Mfg. 


Co.  (89  Hun,  208);  ch.  175  of  Laws  of 
1895,  amd'g  §  2429  Code  Civ.  Pro.; 
Farmers'  Loan  &  Tru.=it  Co.  v.  Bank- 
ers', etc.,  Tel.  Co.  (148  N.  Y.,  315,  af!'g 
8.  c.  83  Hun,  560),  Nevitt  v.  First  JNat. 
B'k  of  Alliany  (91  Hun,  43).  Rodgers 
V.  Adriatic  Fire  Ins.  Co.  (148  N.  Y., 
34,  aff'g  S.  C.  87  Hun,  384),  Olney  v. 
Baird  (15  Misc.,  386). 

As  to  temporary  injunction  in  action 
by  stockholders  to  restrain  the  proceed- 
ings, on  the  ground  of  bad  faith  and 
fraudulent  purposes  of  the  directors  in 
taking  them,  see  Jewett  v.  Swann  (19 
Week.  Dig.,  144). 


YoLuifTAEY  Dissolution  of  Corporation.       1173 

thereof,  is,  at  this  time,  owned  by  the  trustees  [or  directors] 

thereof  [or  is  so  divided  that  one-half  thereof,  to  wit :  

shares,  is  owned  (or  controlled)  by  persons  favoring  the 
course  of  one-half  of  the  trustees  {or  directors)  and  one-half 
by  persons  favoring  the  course  of  the  other  half  of  the 
trustees  {or  directors)  of  said  corporation!. 

That  your  petitioners  have  discovered  that,  etc.  [conclude 
as  in  form  No.  1307,  from  (f)].' 

Dated ,  18—. 

[Signatures  of  directors,  etc.] 

[Verification  as  in  form  No.  1807.] 

[Annex  schedule  as  in  form  No.  1310.] 


No.  1309. 
Order  to  Show  Cause  on  Presentation  of  Petition. 

(Code  Civ.  Pro.,  §  2423.) 

[At,  etc.,  as  in  form  No.  80.] 
[Title  of  proceeding.] 

On  reading  and  filing  the  petition  of  E.  R.  V.,  H.  B.  and 

E.  G.  G.,  as  trustees  of  the  [name  of  corporation],  a 

corporation  created  under  the  laws  of  this  State,  having  its 

principal  office  located  at ,  etc.,  wliieh  petition  is 

dated ,  18 — ,  and  the  schedule  thereto  annexed,  duly 

verified  by  the  petitioners  on  the day  of , 

18 — ,  and  on  motion  of  M.  C.  of  counsel  for  the  petiticmers: 

Ordered,  That  all  persons  interested  in  said  corporation 
show  cause  before  this  court,  at,  etc.,  on,  etc."  [or  before 
J.  L.,  Esq.,  who  is  hereby  appointed  referee  for  that  pur- 
pose, at  his  office.  No. street,  in  the  (city)  of 

,  N.  Y.,  on  the day  of ,  18—,  at 

o'clock  in  the noon  of  that  day],"  why  the 

said  corporation  should  not  be  dissolved. 

And  it  is  further  ordered,  that  a  copy  of  this  ordci-  be 

'See  last  Beritence  of  Bection  2420  of  the  granting  of  the  order.     (Code  Civ. 

Code  Civ.  Pi-o.,  by  whidi  certain  cor-  Pro.,  §  ii423.)     See  ameiidnientH  tnHiiid 

porations  are  excluded   from  the  \)vo-  Heclion   2^'J3  by  chaiiter   ;{I4  of  ISSH; 

visions  of  that  section  ;  and  see  notes  and  by  cliai)fcr   046  of   ISJin,    taking' 

to  form  No.  1307.  cfrcct  Jimunry    1,   ISiKj;  and  nee  sec- 

'Nof  IftMs  than   three   months  after  lioii   8  nf  cliapte-i- 378  of  1883. 


1174 


Forms  Relating  to 


published  at  least  once  in  each  week  of  the  three  weeks 

immediately  preceding  the  said day  of ,   18 , 

in  the ,  a  newspaper  printed  at' ,  in  the  county 

of -,  and  also  in  the [and 1  newspapers  pub- 
lished   in    the    [city]    of ,   in    the    county  of , 

wherein  this  order  is  entered." 


No.  1310. 
Schedule  to  be  Annexed  to  the  Petition. 

(Code  Civ.  Pro.,  §3431.) 

Schedule  "A"  annexed  and  referred  to  in  the  foregoing 
petition. 

Here  insert  the  matters  required  by  subdivisions  Nos.  1  to 
7,  both  inclusive,  of  section  2421  of  Code  Civil  Procedure.' 

[Signatures  of  petitioners.] 


'See  note  1,  p.  520,  to  form  No.  650, 
aa  to  State  paper,  and  publication  of 
notices  therein ;  and  see  chapter  262 
of  Laws  of  1885. 

By  section  2  of  chapter  133  of  Laws 
of  18S4,  referred  to  in  that  note,  it  is 
provided  as  follows : 

"§  2.  Any  and  all  notices  and  ad- 
vertisements in  any  and  all  suits,  ac- 
tions and  special  proceedings  in  any 
court,  or  before  any  judge  of  any 
court  of  this  State,  now  required  or 
allowed  to  be  published  in  the  State 
paper,  shall  hereafter  be  published  in 
such  newspaper  published  in  the 
county  wherein  the  place  of  trial  is 
designated,  or  wherein  the  papers  in 
such  special  proceedings  are  required 
to  be,  or  are,  filed,  as  shall  be  desig- 
nated by  such  court  or  judge." 

The  above  form  is  drawn  according 
to  the  provisions  of  said  section  2. 

^See  Code  Civ.  Pro.,  §  2424. 

By  the  provisions  of  section  2423 
(id.),  as  amended  by  chapter  946  of 
Laws  of  1895,  taking  effect  Jan.  1, 1896, 
the  order  must  be  entered  and  the 
papers  filed,  within  ten  days  after  the 
order  is  made   with  the  clerk  of  the 


county  where  the  principal  office  of 
the  corporation  is  located ;  and  see, 
also,  Freemen's  Nat.  Bank  v.  Smith 
(13  Blatchf.,  220). 

As  to  service  of  order,  see  Code  Civ. 
Pro.,  §  2425. 

If  a  referee  is  not  designated  in  the 
order  to  show  cause,  the  court  may,  in 
its  discretion,  appoint  a  referee  when 
or  after  the  order  is  returnable.  (Code 
Civ.  Pro.,  §  2426.) 

That  it  constitutes  a  jurisdictional 
defect  in  the  proceeding,  if  the  order 
requires  cause  to  be  shown  *'  why  the 
prayer  of  the  petitioner  should  not  be 
granted,"  instead  of  "why  the  cor- 
poration should  not  be  dissolved,"  see 
Matter  of  Pyrolusite  Manganese  Co. 
(29  Hun,  429  ;  S.  C,  3  Civ.  Pro.,  Rep., 
270).  See,  also.  People  v.  Seneca 
Lake  Grape  and  Wine  Co.  (52  Hun, 
174),  In  re  Christian  Jensen  Co., 
Limited  (15  N.  Y.  Supp.,  144,  aff'd  S. 
C,  128  N.  Y.,  550). 

^The  schedule  may  be  in  form  simi- 
lar to  form  No.  1113.  The  affidavit, 
however,  to  be  used  is  as  annexed  to 
form  No.  1307. 


VoLUNTAiiY  Dissolution  of  Corpokation.       1175 

No.  1811. 
Referee's  Report. 

(Code  Civ.  Pro.,  g  2426.) 

[Title  of  proceeding.] 
To  the  \name  of  court]  : 

I,  the  undersigned,  the  referee  to  whom  a  reference  was 
made  by  an  order  of  this  court,  made  at  a  [Special]  Term 

thereof,  held  at,  etc.,  on  the day  of ,  18 — , 

requiring  all  persons  to  show  cause  before  me  at,  etc.,  on, 
«tc.,  why  the  [name  of  corporation]  should  not  be  dissolved, 
do  hereby  respectfully  report : 

That  due  proof  having  been  made  by  affidavit  [which  is 
hereto  annexed]  of  the  publication  of  said  order  as  thereby- 
required,  I  proceeded  at  the  time  and  place  last  aforesaid 
to  a  hearing  of  the  matters  so  referred,  being  attended  by 
F.  C,  Esq.,  the  counsel  for  the  petitioners,  and  also  by 
[naming  parties  who  appeared]. 

That  I  thereupon  heard  the  proofs  and  allegations  of  the 
said  parties,  and  took  testimony  in  relation  to  the  matters 
set  forth  in  said  petition,  and  also  in  regard  to  such  other 
matters  and  things  pertaining  to  the  affairs  of  said  corpora- 
tion as  were  brought  before  me,  which  testimony  duly  sub- 
scribed by  the  respective  witnesses,  and  certified  by  me,  is 
hereto  annexed. 

I  further  report,  that  the  schedule  "A,"  annexed  to  said 
petition,  is,  in  all  respects,  just  and  true  [or  is  just  and  true 
with  the  exception  of  several  items  of  personal  property 
contained  in  the  additional  schedule  hereto  annexed,  ninrked 
*'F,"  which  I  find  belongs  to  said  coi'ijoration,  and  is  to  be 
added  to  said  schedule,  and  with  the  exception  of  several 
debts  of  the  said  corporation,  jiroved  before  me,  and  not 
entered  on  said  schedule,  and  which  are  contained  in  the 
additional  schedule  hereto  nnnexed,  marked  "G,"  which 
shows  the  name  of  each  of  said  creditors,  the  sum  due  him, 
his  x^lace  of  residence,  the  nature  of  the  debt,  and  the  true 
cause  and  consideration  of  the  indebtedness  {or  state  other- 
wise, as  the  facts  may  be)],  and  T  find  and  determine  the 
facts  relating  to  said  corporation  aceoi-diiigly. 

And  I  further  report,  tliat  the  following  is  a  statement  of 


1176  Forms  Relating  to 

the  effects,  credits  and  otlier  property,  and  of  the  debts  and 
engagements  of  the  said  corj^oration,  and  of  all  other  mat- 
ters pertaining  to  its  affairs,  viz.  [state  same].' 

[I  return  herewith  the  said  original  petition,  and  the 
schedules  annexed  thereto,  which  have  been  transmitted 

to  me  for  use  uj^on  such  liearing  by  the  clerk  of 

county,  upon  my  written  order,  and  are  annexed  to  this,  my 
report.'] 

All  of  which  is  respectfully  submitted.' 

Dated ,  18—. 

J.  K.,  Referee. 

No.  1312. 

►  Notice  of  Appearance  to  Make  Persons  Appearing  Parties 
to  the  Proceeding. 

(Code  Civ.  Pro.,  §  2428.) 

[Title  of  proceeding.  ] 

Notice  is  hereby  given,  that  A.  M.  hereby  appears  [by  the 
undersigned  as  his  attorney]  in  the  above  entitled  proceed- 
ing, and  that  notice  of  motion  for  the  final  order  therein 

may  be  served  upon  the  undersigned,  at  No. 

street,  in  the  [city]  of ,  in  this  State. 

Dated ,  18—. 

M.  F.,  Attorney  for  A.  M. 

\or  A.  M.]. 

[Office  address  or  place  of  residence."] 


No.  1313. 
Notice  of  Motion  for  Final  Order. 

(Code  Civ.  Pro.,  g  2428.) 

[Title  of  proceeding.  ] 
Sirs — Take  notice,  that  a  motion  will  be  made  upon  the 

'  That  the  report  must  contain  this  '  The  decision  of  the  court,  when  no 

statement,   see  Matter   of    Pyrolusite  reference  is  made,  must  be  in  writing-, 

Mang-aiiese    Co.    (29   Hun,    429),    and  and  the  same  directions  are  given  in 

Code   Civ.    Pro.,   §    2426.     See,  also,  regard   to  its  contents  as  to  those   of 

Matter  of  E.   M.  Jioynton  Saw  &  File  the  referee's  report.     (Code  Civ.  Pro., 

Co.  (34  Hun,  369).  §2426.) 

'  See  Code  Civ.  Pro.,  §  2427.  "  See  note  2  to  form  No.  122. 


Voluntary  Dissolution^  of  Corporation.      1177 

report  of ,  referee  duly  apjiointed  herein,  and  upon 

all  other  papers  and  proceedings  herein,  for  a  final  order  in 
this  proceeding,  dissolving  the  [name  of  corporation]  and 
appointing  one  or  more  receivers  of  its  property,  and  for 
such  other  or  further  order  or  relief  as  may  be  proper.' 

Dated ,  18—. 

F.  C,  Attorney  for  tlie  Petitioners. 
[Office  address."] 
To  [name  parties  served]. 


No.  1314. 
Final  Order  Dissolving  Corporation,  etc. 

(Code  Civ.  Pro.,  §  2429.) 

[At,  etc.,  as  in  form  No.  SO.] 

[Title  of  proceeding.  ] 

Upon  reading  and  filing  the  report  of  I.  J.,  referee  duly 
appointed  herein  by  an  order  of  this  court,  made  at  a 
[Special]  Term  thereof  held  at,  etc.,  on.  etc.  \or  the  decision 
of  Hon.  A.  O.,  one  of  the  justices  {or  judges)  of  this  court, 
dated,  etc.],  with  notice  of  motion  for  a  final  order  there- 
upon, and  upon  all  the  papers  and  proceedings  herein,  Avith 
proof  of  due  service,  as  required  by  law  and  as  therein  re- 
quired, of  the  order  to  show  cause,  made  herein,  on  the 

day  of ,  18 — ,  and  of  due  service  of  said 

notice  upon  [each  person  who  has  made  himself  a  party  to 
these  proceedings,  by  filing  with  the  clerk  before  the  close 
of  the  hearing  f)efore  said  referee,  a  notice  of  his  api^ear- 
ance  as  required  by  law  (and  upon  the  attorney-general)],' 
and  it  appearing  to  the  court  that  the  said  [name  of  cor- 
poration] is  insolvent  \or  that  a  dissolution  of  the  said 
will  be  beneficial  to  the  interests  of  the  stock- 
holders and  not  injurious  to  the  public  interests,  for  the 
following  reasons,  viz.:  that  (state  same)] : 

'  As  to  notice  to  attorney-general  of        '  See  note  2  to  form  No.  122. 
applic;atif)ii  for  llie  appointment  of  re-        ^  See  note  1  to  last  form  No.  1313 
ceLver  of  corporation  under  section  8     and  see  further  as  to  notice,  Code  Civ 
of  eh.  378  of  Laws  of  1KH:5,  'ce  Whit-     Pro.,  §  2428. 
ney  v.  N.  Y.  and  Atlmitic  H.  11.  Co. 
(32  Hun,  104,  171,  172). 
148 


1178  Forms  Relating  to 

It  is  lierebj^  ordered,  that  the  said  [name  of  corporation] 
be  and  the  same  is  hereby  dissolved,  and  that  T.  F.,  of 

[and  C.  P.,  of ],  be  and  he  is  \or  tliey  are] 

hereby  appointed  receivers  of  the  property  thereof,  \\\)o\\ 
[his]  executing,  acknowledging  and  tiling  w^ith  the  clerk  of 
this  court  a  bond,  in  the  form  required  by  law,  to  the  peo- 
ple of  this  State,  in  the  penalty  of dollars,  with 

two  sufficient  sureties,  to  be  approved  by  a  judge  [or  justice] 
of  this  court,  conditioned  for  the  faithful  discharge  of  his 
duties  as  such  receiver.' 

[Add  further  provisions  substantially  as  in  form  No.  292.] 


TITLE  XII. 

FORMS  RELATING  TO  PROCEEDINGS   SUPPLEMENTARY  TO  AN 
EXECUTION  AGAINST  PROPERTY. 

(Code  Civ.  Pro.,  Ch.  17,  Tit.  12.) 

Article  First. 

forms  relating  to  proceedings  to  compel  an  exam- 
ination of  the  judgment  debtor,  and  of  his  debtor 

OR  BAILEE. 

(Code  Civ.  Pro.,  Ch.  17,  Tit.  1,  Art.  1.) 

No.  1315.     Affidavit  to  olitain  order  to  examine  judgment  debtor  after  return 
of  execution  against  property  issued  out  of  a  court  of  record. 

1316.  Affidavit  to  procure  order  for  examination  after  tlie  issuing  and 

before  the  return  of  an  execution. 

1317.  Order  for  examination  of  judgment  debtor  after  return  of  execution. 

1318.  Affidavit  to  procure  warrant  for  arrest  of  judgment  debtor. 

1319.  Warrant  for  arrest  of  judgment  debtor. 

1320.  Undertaking  of  judgment  debtor  to  obtain  his  discharge   from 

arrest. 

1321.  AVarrant  upon  failure  to  complj'  with  the  order  directing  under- 

taking to  be  given. 
1323.     Affidavit  to  obtain  order  for  examination  of  person  or  officer  of 
corporation  having  property,  etc.,  of  judgment  debtor. 

1323.  Order  to  examine  person  having  property,  etc.,  of  judgment  debtor. 

1324.  Referee's  return  pursuant  to  order. 

1325.  Oath  of  referee. 

1326.  Affidavit  to  obtain  order  permitting  payment  of  debt  to  sheriff. 

1327.  Notice  of  application  for  order  permitting  paj'ment  to  sheriff  by 

person  indebted  to  judgment  debtor. 

'  For  form  of  receiver's  bond,   see  excepted  from  this  title  (title  11  of  .ch. 

form  No.  302.  17  of  Code  Civ.  Pro.),  see  (id.),  §  2481. 

See  as  to  sales,  etc..  which  are  void  See,  also,  ch.  175  Laws  of  1895,amend- 

-as  ag-ainst  the  receiver  and  creditors  ing  §  2429   Code   Civ.  Pro.,  and   see 

of  the   corporation,    Code  Civ.    Pro.,  notes  to  form  No.  1307. 
§  2430  ;  as  to  which  corporations   are 


Supplementary  Proceedings.  1179 

No.  1328.     Order  permitting  person  to  pay  debt  to  sheriff. 

1329.  Notice  of  application  for  order  that  debtor  pay  over  money,  etc. 

1330.  Order  requiring  delivery  of  money  or  property  to  sheriil  or  receiver 

by  judgment  debtor. 

1331.  Order  directing  the  paj'ment  or  application  of  money  or  property 

by  sheriff. 

1332.  Order  directing  balance,  etc.,  to  be  paid  to  judgment  debtor  ir 

certain  cases. 

1333.  Affidavit  of  service  of  injunction  order  and  order  requiring  debtoi 

attendance  for  examination. 

1334.  Sheriff's  return  of  arrest  pursuant  to  warrant. 
1385.     Order  dismissing  or  discontinuing  proceeding. 

1836.     Order  directing  payment  of  costs  to  judgment  creditor. 

1337.  Order  directing  payment  of  costs  to  judgment  debtor. 

1338.  Affidavit  to  obtain  examination  of  judgment  debtor,  etc.,  when  exe- 

cution has  been  issued  pursuant  to  section  1941  of  the  Code  of 
Civil  Procedure. 


No.  131.5. 

Affidavit  to  Obtain  Order  to  Examine  Judgment  Debtor, 
After  Return  of  Execution  against  Property  Issued  out 
of  a  Court  of  Record. 

(Code  Civ.  Pro.,  §  2435.) 

[Title  of  proceeding.  ] 
County,  ss.  : 


A.  B.,  of ,  being  duly  sworn,  says,  that  on  the 

day  of ,  18 — ,  a  judgment  was  rendered 


by  the  [name  court  or  officer]  in  favor  of  [deponent]  and 
against  C.  D.,  for dollars,  and cents  dam- 
ages, and dollars  and cents  costs  [which 

judgment  was  afterwards  duly  assigned  to  (deponent),  and 
is  now  owned  by  him].' 

[That  the  judgment  roll  thereupon  was  duly  liled  in  the 

ofl&ce  of  the  county  clerk  of  the  county  of ,  and 

said  jl^dgment  was  duly  docketed  in  said  clerk's  office  on 
the  day  last  aforesaid.] 

[That  a  transcript  thereof  was  duly  filed,  and  said  judg- 
ment was  duly  docketed,  in  the county  clerk's 

office,  on  the day  of ,  18—.] 

'  See  Lindsay  v.  Sherman  (5  How.     Pr.,  308),  Frederick  v.  Decker (18  How. 

Pr.,  90). 


1180  FoKMS  Relating  to 

That  said  judgment  was  rendered  upon  the  said  judgment 
debtor's  appearance  [or  upon  the  personal  service  of  tlie 
summons  upon  said  C.  I).].'  [**] 

That  an  execution  was  duly  issued  upon  said  judgment  [f] 
out  of  said  court  [or  name  other  court  of  record  out  of  which 
the  execution  was  issued],  (by  leave  of  said  court,  duly 

obtained,)  on  the day  of ,   18 — ,  against 

the  property  of  the  said  CD.  to  the  sheriff  of  the  county 

of where  the  said  C.  D.  resides  [or  has  a  place  for 

the  regular  transaction  of  business,  in   person],  at  the 
time  of  the  commencement  of  this  proceeding. 

[Or  where  the  judgment  roll  upon  said  judgment  {or  where 
a  transcript  of  said  judgment)  is  tiled  as  aforesaid,  said  C. 
D.  not  being,  at  the  time  of  the  commencement  of  this  pro- 
ceeding, a  resident  of  this  State."]  [*] 

That  said  execution  has,  less  than  ten  years  since,  and  on 

the day  of ,  18 — ,  been  duly  returned'  by 

said  sheriff  to  the  county  clerk  of  the  county  of , 

wholly  nnsatisfied  [or  unsatisfied  to  the  extent  of 

dollars],  and  [ff]  that  the  whole  amount  of  said  judgment 
is  still  unpaid,  together  with  interest  thereupon  from  the 

day  of ,  18 —  [or  that  there  still  remains  due 

and  unpaid,  ux3on  said  judgment,  tlie  sum  of dollars, 

together  with  interest  thereupon  from  the day  of 

,  18-]. 

[Deponent  further  says,  that  he  is  the  attorney  {or  agent) 
of  said  (naming  party  on  whose  behalf  the  application  is 
made),  and,  as  such,  is  duly  authorized  to  take  j)roceedings 
against  said  C.  D,,  as  provided  in  title  twelfth  of  chapter 
seventeenth  of  the  Code  of  Civil  Proce  dure.*] 

That,  etc.  [substantially  as  in  form  'No.  209,  from  (f)].' 

A.  B. 

[Jurat  as  in  form  No.  46.] 


'  See  Code  Civ.  Pro.,  §  2458.  mer  (43  Hun,  86),  Wright  v.  Nostrand 
"  As  to  the  ca-ses  in  which  these  forma  (94  N.  Y.,  31),  Methodist  Book  Con- 
are  to  be  respectively  used  see  Code  cem  &  Co.  v.  Hudson  (1  How.  Pr.  [N. 
Civ.  Pro..  §  2458,  Bubds.  1,  2  and  3.  S.l,  517). 

'  See  Marx  v.  Spaulding-  (21  Week.  "  See  Hawes  v.  Burr  (7  Robt.,  452/. 

Dig.  275;  S.  C,  35  Hun,  478,  aff'd,  99  As  to  statement  by  jjersonal  repre- 

N.  v.,  675),  that  in  case  of  an  improper  sentative,  see  Collier  v.  De  Revere  (7 

return  by  a  sheriff,  the  remedy  is  to  Hun,  61),  Pardee  v.  Tilton  (20  Hun, 

require  the  sheriff  to  make  a  proper  76),  Walker  v.  Donovan  (6  Daly,  552; 

return,  and,  if  he  refuses,  to  move  to  53  How.  Pr.,  3). 

compel  him  tu  do  so  before  proceed-  Where  the  attorney  who  made  the 

ings  supplementary  to  the   execution  affidavit  did  not  state  therein  directl7 
are  taken.     See,  also.  Baker  v.  Herki- 


SUPPLEMENTAEY   PROCEEDINGS. 


1181 


No.  1316. 

Afftdayit  to  Procure  Order  for  Examination  after  the  Issu- 
ing and  before  the  Return  of  an  Execution. 

(Code  Civ.  Pro.,  §  3436.) 

As  in  form  No.  1315  to  [*],  and  from  thence  as  follows : 
That  said  sheriff  has  not  yet  returned  the  said  execution. 

And  deponent  further  says,  that  the  said  C.  D.  has  prop- 
ertj^  which  he  unjustly  refuses  to  aj^ply  toward  the  satisfac- 
tion of  said  judgment,  to  wit  [state  property]  [as  deponent 
is  informed  by  F.  G.,  whose  affidavit  is  hereto  annexed,  and 
verily  believes]. 

[That  deponent  cannot  obtain  the  affidavit  of  said  F.  G., 
in  this  proceeding,  for  the  following  reasons,  to  wit  (state 
same).'] 


that  he  was  such  attorney,  but  merely 
described  himself  as  such,  it  was  held, 
that  this  did  not  prevent  the  court 
from  having  jurisdiction  of  the  pro- 
ceeding. (Miller  v.  Adams,  52  N.  Y., 
409,  414.)  See,  also,  Moore  v.  Taylor 
(40  Hun,  56),  Kress  v.  Moorhead  (26 
Week.  Dig.,  410),  Bro^vn  v.  Walker 
(28  State  Rep.,  36,  aflTd  without  op., 
121  N.  Y.,  717.) 

*This  clause  is  inserted  in  pursu- 
ance of  rule  25  of  Gen.  Rules  of  Prac; 
as  to  what  it  is  necessary  to  show  in 
case  a  previous  examination  has  been 
had,  see  Canavan  v.  McAndrew  (20 
Hun,  46),  Grocers'  Bank  v.  Bayaud 
(21  Hun,  203),  Jurgenson  v.  Hamilton 
(5  Abb.  N.  C,  149),  Carter  v.  Clarke 
(7  Robt.,  43),  Irwin  v.  Chambers  (40 
N.  Y.  Super.  Ct.,  432),  Goodall  v.  De- 
marest  (2  Hilt.,  534),  Sellig  v.  Mcln- 
tyre  (N.  Y.  Daily  Reg.,  July  28,  1883), 
Cromwell  v.  SpofTord  (4  Civ.  Pro. 
Rep.,  273),  Railings  v.  Pitmann  (49 
Super.  Ct.,  307),  Methodist  Book  Con- 
cern &  Co.  V.  Hudson  (1  How.  Pr. 
[N.  S.],  517),  Marshall  v.  Link  (36 
State  Rep.,  60),  Weiss  v.  Ashman  (11 
Misc.,  377). 

As  to  statements  upon  information 
and   belief,  see   Millei-  v.  AduiuH  (52 


N.  Y.,  409),  Klinke  v.  Levey  (N.  Y, 
Daily  Reg.,  Aug.  22,  1S83),  Mahnken 
V.  Pape  (id.,  Aug.  28,  1SS3;  65  How. 
Pr.,  453),  Day  v.  Lee  (52  How.  Pr., 
95),  S.  C.  as  People  v.  Jones  (1  Abb. 
N.  C,  172),  and  note  1  to  form  No. 
1316.  See,  also,  Teffts  v.  Eppstein 
(17  Civ.  Pro.  R.,  168),  Cooman  v. 
Board  of  Education  of  Rochester  (37 
Hun,  96). 

As  to  before  what  judge  the  pro- 
ceedings may  be  instituted,  see  section 
2434,  Code  Civ.  Pro.,  as  amended  by 
chapter  946  of  1895,  taking  effect 
January  1,  1896,  and  see,  further,  that 
section  as  to  statements  of  affidavit  in 
certain  cases,  and  see  Jacobson  v. 
Doty  Plaster  Manuf.  Co.  (32  Hun,  436), 
Felt  V.  Dorr  (29  id.,  14),  Davis  v. 
Herrig  (65  How.  Pr.,  290),  Baldwin. v. 
Perry  (25  Hun,  72),  Folwell  v.  Cambeis 
(14  Week.  Dig.,  115),  Merrill  v.  AUin 
(46  Hun,  623),  Peck  v.  Baldwin  (58 
id.,  308),  Douglass  v.  Maiiizer  (40  id., 
75),  Browning  v.  Hayes  (41  id.,  382), 
Potts  V.  DavitLson  (1  How.  Pr.  [N.  8.], 
210),  A(;kerley,  etc.,  Co.  v.  Pari/  (39 
State  Rep.,  17),  Gildersleove  v.  Lester 
(OK  Hun,  344),  Blanclianl  v.  Reilly  (II 
Civ.  Pro.  R.,  278),  Graves  v.  ScoviilH 
(12  id.,   165),   Mclntyro  v.    AlU;u    (13 


Supplementary  Proceedings. 


1181a 


Hun,  124),  Carroll  v.  Langan  (63  id., 
380),  Schenck  v.  Erwin  (id..  104),  Mer- 
ritt  V.  Judd  (18  Civ.  Pro.  R.,  159). 

By  section  2462,  Code  Civ.  Pro.,  the 
provisions  of  sections  26,  52  and  279, 
id.,  apply  to  a  special  proceeding  in- 
stituted as  prescribed  in  article  first  of 
title  fii'st  of  chapter  seventeenth,  id.; 
and  see,  further,  provisions  of  said 
section  2462. 

As  to  cases  in  which  said  article  tirst 
is  not  ap[ilical)le,  and  what  propei'ty 
cannot  be  reached  in  proceedings 
under  it,  see  Code  Civ.  Pro.,  §  2463. 

As  to  affidavit  in  supplementary 
proceedings  to  collect  a  tax,  see  chap- 
ter 640,  Laws  of  18S1 ;  and  see  Matter 
of  Jacob  Conklin  (21  Week.  Dig..  329). 

See,  also.  Felt  v.  Dorr  (29  Hun,  14), 
and  form  No.  559,  as  to  the  requisites 
of  an  execution  issued  upon  a  judg- 
ment recovered  against  an  assignee 
for  the  benefit  of  creditors,  and  of  the 
affidavit  in  supplementary  proceed- 
ings founded  thereupon. 

By  an  amendment  to  section  2435, 
Code  Civ.  Pro.,  by  chajiter  176  of 
Laws  of  1896,  the  provisions  of  that 
section  are  extended  to  an  execution 
in  the  case  of  an  order  issued  in  the 
same  manner  as  upon  a  judgment,  so 
far  as  the  provisions  of  said   section 


can  be  applied  in  substance.  That 
amendment  takes  effect  September  1, 
1896.  By  the  same  chapter  section 
2432,  Code  Civ.  Pro.,  was  amended  by 
adding  thereto  as  follows :  The  party 
to  whom  costs  are  awarded  in  a  spe!- 
cial  pi-oceeding  shall  be  entitled  to  the 
same  remedies  under  this  title,  under 
the  same  circumstances,  as  near  as 
may  be,  as  a  judgment  creditor.  And 
for  the  purpose  of  this  title,  the  party 
to  whom  such  costs  a'e  awai'ded  shall 
be  deemed  a  judgment  creditor,  and 
the  party  against  whom  they  are 
awarded  shall  be  (ieemed  a  judgment 
debtor.  As  to  execution  u])on  o?-der 
for  costs,  etc.,  see  section  779,  Code 
Civ.  Pro.,  and  note  5,  page  428,  to 
form  No.  556.  The  above  form.  No. 
1315,  may  easily  be  adapted  to  this 
case. 

Where  the  judgment  is  more  than  five 
years  old  at  the  time  of  issuing  execu- 
tion the  affidavit  must  show  that  an 
application  has  been  made  to  the  court 
for  leave  to  issue  execution  or  that  an 
execution  has  been  issued  and  re- 
turned unsatisfied,  in  whole  or  in  part, 
within  five  years  after  the  entry  of  the 
judgment.  (Code  Civ.  Pro.,  §§  1377, 
1378.) 

'  As  to  statements  made  in  an  affi- 


1182  Forms  Relating  to 

That  on  the day  of ,  18—,  and  after  tke 

issuing  of  said  execution,  a  demand  Avas  made  by  this  de- 
ponent [or  by  C.  J.,  whose  affidavit  is  hereto  annexed], 
upon  said  C.  D.,  to  apply  his  said  property  to  the  satisfac- 
tion of  tlie  said  judgment,  and  that  said  C.  D.  refused  [or 
has  neglected]  to  apply  the  said  property  to  that  purpose, 
pursuant  to  said  demand.' 

[Conclude  as  in  form  No.  1315,  from  (ft).'] 

A.  B. 

[Jurat  as  in  form  No.  46.  ] 


No.  1317. 


Order  for  Examination  of  Judgment  Debtor  after  Return 

of  Execution. 

(Code  Civ.  Pro.,  §  2435.) 

[Title  of  proceeding.] 

Proof  having  been  made  to  me,  by  the  affidavit  of  A.  B. 
[or  of  C.  F.,  or  of  M.  F.,  attorney,  etc.,  for  A.  B.  or  C.  F.], 

dated ,  18 — ,  that  a  judgment  was  heretofore,  and 

on  the day  of ,   18 — ,   rendered  by  the 

Court,  upon  personal  service  of  the  summons  \or 

upon  the  personal  appearance  of  the  judgment  debtor]  in 

favor  of  [said  A.  B.]  against  C.  D.,  for  the  sum  of 

dollars  and cents,  damages  and  costs,  and  the  judg- 
ment roll  thereupon  filed  in  the county  clerk's  office 

on  the day  of ,  18 —  [which  judgment  has 

been  duly  assigned  to  said  C.  F.,  and  is  now  owned  by  him], 
and  that  a  transcript  of  said  judgment  was  duly  filed,  and 

said  judgment  duly  docketed,  in  the county  clerk's 

office  on  the day  of ,  18 — ,  and  that  exe- 
cution was  duly  issued  thereupon  on  the day  of 

,  18 — ,  out  of  the Court,  against  the  prop- 
erty of  said  C.  D.,  to  the  sheriff  of  the  proper  county,  and 

davit    upon   information    and    belief,  "See  cases  above  cited  in  note  1,  and 

see  note  2  to  form  No.  178,  and  note  Sackett  v.  Newton  (10  How.  Pr.,  560), 

3  to  form  No.  236,  and  note  5,  page  Owen     v.    Dupignac     (17    id.,    512), 

1181.  Mahnken   v.  Pape  (N.  Y.  Daily  Reg., 

'  See  First  Nat.  Bank  v.  Wilson  (13  August  28,  1883 ;  65  How.   Pr.,  453), 

Hun,  232),  Levy  v.  Beacham  (64  id..  Mason  v.  Hackett  (21  Week.  Dig.,  79), 

62),  Bowery  Bank  of  N.   Y.  v.  Wid-  generally  as  to  this   proceeding,  and 

mayer   (9   N.    Y.    Supp.,    629)    as   to  notes  to  last  form.  No.  1315. 
necessity  of  demand. 


Supplementary  Proceedings.  1183 

that  said  execution  has  been  since  duly  returned  by  said 

sheriff,  on  the daj^  of ,  18 — ,  to  the 

county  clerk's  office  wholly  [or  x^arth^]  unsatisfied,  and  that 
said  judgment  still  remains  wholly  [or  partly]  unpaid  and 
unsatisfied  : 

[And  it  appearing,  by  (said)  affidavit,  that  each  of  the 
judges  before  whom  this  proceding  might  be  instituted,  as 
prescribed  by  section  2434  of  the  Code  of  Civil  Procedure, 
is  (either)  absent  from  the  county  {or  is  unable,  or  disquali- 
fied to  act).  J 

Now,  upon  the  application  of  [M.  F.,  attorney  for]  the 
said  A.  B.  [or  Q.  F.] : 

I  do  hereby  order,  that  the  said  C.  D.  is  hereby  required, 
pursuant  to  law,  to  attend  before  [*]  me  [or  before  E.  F.,  a 

justice  of  the  Supreme  Court  residing  in  the judicial 

district  {or  county  judge  of  the  county  of ,  etc.)],'  at, 

etc.,  on,  etc.,  at o'clock  in  the noon,  to  be 

examined  concerning  his  proi)erty. 

[f]  And  I  do  hereby  enjoin  the  said  A.  B.,  and  all  other 
persons,  from  making  or  sufl'eririg  any  transfer  or  other  dis- 
position of,  or  interference  with,  the  property  of  the  said 
A.  B.,  until  further  direction  in  the  jji'^^mises.* 

[Or  as  above  to  (^),  and  from  thence  as  follows  :  I.  J.,  who 
is  hereby  designated  and  appointed  as  referee  for  that  pur- 
pose, at,  etc.,  on,  etc.,  at o'clock  in  the 

noon,  to  be  examined  concerning  his  property,  and  that  said 
referee  certify  to  me,  {or  to  E.  F.,  a  justice  of  the  Supreme 

Court  residing  in  the judicial  district,  or  the  county 

judge  of  the  county  of ,  etc.),'  all  the  evidence  and 

the  other  proceedings  taken  before  him  (conclude  as  in  above 
from  t).'] 


Dated ,  18—. 


A.  O.,  Judge,  etc. 


*  See  Code  Civ.  Pro.,  §  2434.     Or  the  '  See  Code  Civ.  Pro.,  6  24J4. 
order  may  require  the  party's  attend-  *  See  Code  Civ.  Pio.,  j  2442. 
ance  at  such  time  and  place  as  may  The  or.der  must  state  all  the  facts 
be  appointed  by  the  ju<l(^e  or  referee,  necessary  to  confer  juriBtiiction,  other- 
Baldwin  v.  Goldsmith  (2  Law  Biil.,  19).  wise  it  is  irrejrulai",  althou{,'h  the  uHi- 

'  See  Code  Civ.  Pro.,  §  24r)l,  and  see  davit  states  them.     Thus,  where  the 

People  V.  Randall  (73  N.  Y.,  416).  order  is  based  on  a  Juilf,'ment  of  adis- 

See,  also,  Mori-is  v.  Fii-st  Nat.  J5ank  trict  court  of  N(iw  York  city,  or  of  a 

(tJB  N.  Y.,   362),  that  injunction  order  justicte's  court,  it  must,  recite  the  tilin^f 

is  superseded  )>y  an  oi-der  aj>pointing'a  of  a  ti-ansci-ipt  and  docket! tijf  tiic  judjf- 

recelver.  ment  with  the  county  clerk  and  state 


Supplementary  Proceedings. 


1183a 


the  time  of  so  doing.  (Day  v.  Brosnan, 
6  Abb.  N.  C,  312;  N.  Y.  Com.  P.  [Sp. 
Tm.].) 

See,  also,  Pardee  v.  Tilton  (20  Hun, 
76,  aflF'd  8.  C,  83  N.  Y.  623),  Diossy 
V.  West  (8  Daly,  298),  Bank  for  Sav- 
ings V.  Hope  (8  Daly,  316),  Muldoon 
V.  Pierz  (1  Abb.  N.  C,  309),  First 
Nat.  Bank  v.  Dering  (8  Week.  Dig., 
261),  Jennings  v.  Lancaster  (15  Misc., 
444),  Conyngham  v.  Duffy  (125  N.  Y., 
200),  Baumler  v.  Ackernian  (63  Hun, 
41),  Logan  v.  McCall  Publishing  Co. 
(140  N.  Y.,  447),  Importers'  &  Trad- 
ers' Nat.  Bank  of  N.  Y.  v.  Quacken- 
bush  (143  id.,  567,  rev'g  S.  C,  80  Hun, 
111),  Cleveland  v.  Johnson  (5  Misc., 
484),  Marx  v.  Spaulding  (16  Abb.  N.  C. 
309),  Weiss  v.  Ashman  (11  Misc.,  377), 


McGuire  v. Hudson  (41  State  Rep., 295), 
Bolt  V.  Hauser  (33  State  Rep.,  343), 
Ackerly,  etc.,  Co.  v.  Partz  (39  id.,  17), 
Peck  V.  Baldwin  (58  Hun,  308),  Steph- 
ens v.  Page  (4  Misc.,  517),  L.;tcheldor 
V.  Nugent  (24  N.  Y.  Sup.,  828).  People 
ex  rel.  Gottchius  v.McGoldrick  (24  Civ. 
Pro.  R.,  292),  People  v.  Cowan  (146  N. 
Y.,  348,  rev'g S.C,  11  Misc.,  302),  Ault- 
man  &  Taylor  Co.  v.  Syme  (87  Hun, 
295),  Importers,  etc..  Bank  of  N.  Y.  v. 
Quackenbush  (144  N.  Y.,  651),  gener- 
ally as  to  order.  That  such  proceed- 
ings may  be  instituted  against  a  for- 
eign corporation  having  no  agent  and 
doing  no  business  in  the  state,  and  a 
receiver  of  its  property  in  this  state 
be  appointed,  see  Logan  v.  McCall 
Pub.  Co.  (140  N.  Y.,  447). 


1184  Forms  Relating  to 

No.  1318. 

Aifidavit  to   Procure   Warrant   for  Arrest  of  Judgment 

Debtor. 

(Code  Civ.  Pro.,  §2437.) 

As  ill  form  No.  1315  to  end  thereof,  and  from  thence  as 
follows:  And  deponent  furtlier  says,  that  there  is,  in  his 
opinion,  danger  that  the  said  C.  T).  will  leave  the  State  of 
New  York  [or  will  conceal  himself],  and  that  there  is  reason 
to  believe  that  he  has  property  which  he  nnjustly  refuses  to 
apph'  to  the  payment  of  the  said  judgment. 

That  such  o[)inion  and  belief  are  founded  upon  the  foh 
lowing  facts  [state  the  facts,  and,  as  to  matters  stated  upon 
information  and  belief,  add  affidavit  of  informant,  or  ac- 
count for  its  absence].' 


No.  1319. 
Warrant  for  Arrest  of  Judgment  Debtor. 

(Code  Civ.  Pro.,  ^  2437.) 

The  People  of  tlie  State  of  New  York,  to  the  Sheriff  of  the 
County  of : 

Whereas,  proof  has  been  made  to  me,  b}'  affidavit,  that 

a  judgment  was  heretofore,  and  on  the day  of 

,  18—,  rendered  by  the Court,  upon  per- 
sonal service  of  tlie  summons  [or  upon  the  personal  appear- 
ance of  the  judgment  debtor],  in  favor  of  A.  B.  ;uid  against 

C.  D.,  for dollars  and cents,  damages  and 

costs  [which  judgment  has  been  duly  assigned  to  E.  P.,  and 
is  now  owned  by  him]  [the  judgment  roll  whereupon  was 

duly  filed  in  the county  clerk's  office  on  the 

day  of ,  18 — ],  and  a  transcript  of  which  judgment 

*  See  notes  referred  to  in  note  1  to  See  Nelzel  v.  Mulford  59  How.  Pr., 

form  No.  1316.  452),  Rohshand  v.  Waring  (1  Abb.  N. 

These  statements  may,  in  like  man-  C,  311) 
ner,  be  inserted  in  form  No.  1316. 


Supplementary  Proceedings.  1185 

was  duly  filed,  and  said  judgment  dulj^  docketed,  in  the 

county  clerk's  office  on  tlie day  of , 

18 — ,  and  that  an  execution  has  been  duly  issued  thereupon 

out  of  the Court  to  the  sheriff  of  the  proper  count)' 

on  the day  of ,  18 — ,  and  that  said  execu- 
tion has  since,  and  on  the day  of ,  18 — , 

been  duly  returned  by  said  sheriff  to  the county 

clerk's  office  wholly  \or  partly]  unsatisfied,  and  that  said 
judgment  still  remains  wholly  {or  p)artly]  unpaid  and  nn 
satisfied. 

And  also  upon  proof,  by  affidavit,  to  my  satisfaction,  that 
there  is  danger  tliat  the  said  C.  D.  will  leave  the  State  of 
New  York  {or  conceal  himself],  and  that  there  is  reason  to 
believe  that  he  has  property  Avhich  he  unjustly  refuses 
to  apply  to  the  payment  of  said  judgment,  to  wit :  that 
[here  recite  facts  as  they  appear  by  the  affidavit,  form  No. 
1818]. 

You  are  hereby  required  to  arrest  the  said  C.  D.,  and  to 
bring  him  before  me  {or  before,  etc.],  at  etc.,  on,  etc.,  then 
and  there  to  be  dealt  with  according  to  law.  And  this  shall 
be  your  warrant  therefor.' 

Witness,  etc.  [as  in  form  No.  242]. 

[Signature  of  judge  as  in  form  No.  242.] 

[Signature,  etc.,  of  attorney  as  in  form  No.  242. J 


No.  1320. 


Undertaking  of  Judgment  Debtor  to  Obtain  his  Discharge 

from  Arrest. 

(Code  Civ.  Pro.,  ^5  2440.) 

[Title  of  proceeding.] 

Whereas,  a  warrant  was  issued  by  Hon.  A.  0.,  judge, 
etc.,   in   the  above  entitled   proceeding,   to  the   slieriff  of 

county,  pursuant  to  section  2437  of  the  Code  of 

Civil  Procedure,  requiring  the  said  slieriff  to  [state  require- 
ment of  warrant]  ;  and, 

Whereas,  the  said  C.  D.  has  been  arrested  and  brought 
before  said  judge  \<)r  name  otlini'  judge]  ;  and, 


'  See   notes  to  fonn  No.  1319,  and     Deimiutf  v.  SchiellV-lin   (26  State  Rep., 
§§  2438,  2439,  Code  Code   Civ.   Pro.;     9()). 


1186  Forms  Relating  to 

Whereas,  it  has  appeared  to  the  satisfaction  of  said  judge, 
from  the  examination  of  said  C.  D.  \or  name  other  proof], 
that  there  is  danger  that  he  will  leave  the  State  \or  conceal 
himself j,  and  that  he  has  property  which  he  has  unjustly- 
refused  to  apply  to  the  satisfaction  of  the  judgment  men- 
tioned in  said  warrant,  and  an  order  has  thereupon  been 

made  by  said  judge,  dated ,   18 — .  requiring  said 

C.  D.  to  give  an  undertaking,  with  the  sureties  and  in  the 
sum  and  within  the  time  specified  in  said  order.   [*] 

Now,  therefore,  we,   E.   F.,   of [merchant],  and 

G.  H  ,  of [farmer],  do  hereby  jointly  and  severally 

undertake,  pursuant  to  the  said  order  and  to  the  provisions 

of  section  2440  of  the  Code  of  Civil  Procedure,  that  said 

C.  D.  will,  from  time  to  time,  a,s  the  said  judge  \or  justice] 

directs,  attend  before  the  said  judge  \or  before  the  referee 

appointed  [or  to  be  appointed)]  in  these  proceedings,  and 

that  he  will  not,  until  discharged  from  arrest  by  virtue  of 

the  said  warrant,  dispose  of  any  of  his  property  which  is 

not  exempted  from  seizure  by  section  2463  of  the  Code 

of  Civil  Procedure. 

Dated ,  18—. 

E.  F. 

G.  H. 

In  presence  of . 

[Acknowledgment  as  in  form  No.  340,  or  proof  as  in  form 
No.  638,  affidavits  and  approval  as  in  form  No.  340.] 


No.  1321. 

Warrant  upon  Failure  to  Comply  with  the  Order  Directing 
Undertaking  to  be  Given. 

(Code  Civ.  Pro.,  ^  2440.) 

As  in  form  No.  1320  substantially,  to  [*],  and  from  thence 
as  follows  :  And,  whereas,  the  said  C.  D.  has  failed  to  com- 
ply with  the  said  order  within  the  time  therein  specified : 

Now,  therefore,  I  do  hereby  commit  the  said to 

the  [naming  prison],  there  to  remain  in  the  custody  of  the 
sheriff  of county,  until  the  close  of  the  examina- 
tion in  these  proceedings,  or  until  the  giving  of  the  said 
undertaking,  except  as  I  may  direct  the  said  sheriff  to  pro- 


Supplementary  Pkoceedings.  1187 

produce  him,  from  time  to  time,  as  required,  in  the  course 
of  these  proceedings. 

Witness,  etc.  [as  in  form  No.  242], 

A.  O.,  Judge,  etc. 

M.  IS".,  Attqrney  for . 

[Office  address.'] 


No.  1322. 

Affldayit  to  Obtain  Order  for  Examination  of  Person  or 
Officer  of  Corporation  Having  Property,  etc.,  of  Judg- 
ment Debtor. 

(Code  Civ.  Pro.,  g  2441.) 

Add  to  forms  Nos.  1315  and  1316,  as  follows  :  And  this  de- 
ponent further  shows,  upon  information  and  belief,  that  [*] 

F.  M.,  who  resides  at ,  in  this  State  [or  who  does 

not  reside  in  this  State,  but  resides  at ,  in  the  State 

of ,  but  has  a  place  for  the  transaction  of  his  busi- 
ness, in  person,  at ,  in  the  count}^  of ,  in 

this  State,  or  who  does  not  reside  in  this  State,  and  has  no 
place,  etc.],'  has  [f]  personal  property  of  the  said  C.  D. 
exceeding  ten  dollars  in  value,  to  wit  [describe  |)i()i>prty} 
[or  is  indebted  to  the  said  C.  D.,  in  the  sum  of dol- 
lars, upon,  etc.]. 

[That  the  information  of  deponent,  upon  which  such  be- 
lief is  based,  is  derived  fi-om  G.  H.,  whose  affidavit  is  hereta 
annexed,  or  whose  affidavit  could  not  be  obtained  for  the 

reason  that  (state  leason).'] 

A.  B. 
[Jurat  as  in  form  No.  46.] 

[Or  in  case  of  a  corporation  say,  from  (*)  :  The  (name  of 

corporation),  of  which  J.  K.,  who  resides  at ,  in  the 

county  of ,  in  this  State  {or  who  does  not  reside  in 

this  State,  but  resides  at ,  in  the  State  of' , 

and  has  a  place  for  the  regular  transaction  of  business,  in 


Lingsweiler   v.  Lingsweiler   (18   Civ. 
Pro.  R.,   SI).    O'Connor  v.    Meclmnics' 


'  Ree  note  2  to  form  No.  122. 

*  See  section   2459,  Code  Civ.  Pro., 

an<i  Hee  Anway  V.  David  (0  Hun,  296).  Uank    (124   N.    V.,    321).    Kch.Miik 

Jiirffen.«on  v.  Hamilton  (.'>  Abb.  N.  C,  Iiwiii  (t;3  Hum,  10-1),  Lconanl  v.  Bow- 

149).    Foster   v.  WilkinH.m    (37    Hun,  man  (40  Stiit.!  K.-|..,  KJ.',).  WaKlron  v. 

242),  Merrill  v.   Allen  (40    Hun.  623),  Walker  (43  Stale  Ke|...  60r>).  I'raney  v. 

Peck  v.  Baldwin  (.'■)S  Hun,  30S).  Ciilder-  Hmith   (SH  Hun,  2ir)),  (iran.l  Lod^e  of 

Bleevev.  Lester  (69  Hun,  344)   Fleming'  K.  of  P.  v.   Manhattan  Savings  InHti- 

V.  Tour^'ee  (40  State  Kep.,  Tnf)),  ColliiiH  tution  (12  Misc.,  626). 

V.  Beehe  (r)4  Hun,  31H),    rrrinnell   v.  'See  note  1  to  form  No.  1316. 
Sherman    (19   Civ.    Pro.    Rei).,    139), 


1188  Forms  Kelating  to 

person,  at ,  in  the  county  of ,  in  this  State, 

or  who  does  not  reside  in  this  State,  and  has  no  place  for 
the  regular  transaction  of  business,  in  person,  within  this 
State),  is  the  president,  etc.  has,  etc.,  as  above  from  (t),J 


No.  1323. 

Order  to  Examine  Person  Having  Property,  etc.,  of  Judg- 
ment Debtor. 

(Code  Civ.  Pro.,  §  2441.) 

[Title  of  proceeding.] 

Upon  proof,  by  the  affidavit  of  A.  B.   \or  C.  F.,  or  of 

M.  F.,  attorney  for  A.  B.,  or  C.  F.],  dated ,  18— 

{or  name  other  evidence],  to  my  satisfaction,  that  a  judg- 
ment was  rendered  in  the Court  on  the 

day  of ,  18 — ,  in  favor  of  A.  B.  against  C.  D.,  upon 

the  personal  appearance  of  said  C.  D.  \or  upon  the  personal 
service  of  the  summons  upon  said  C.  D.],  for dol- 
lars and cents  [and  the  judgment  roll  thereupon 

filed  in  the county  clerk's  office  on  the 

day  of ,  18 — ]  [a  transcript  of  which  judgment  was 

duly  filed,  and  said  judgment  duly  docketed,  in  the 

county  clerk's  office  on  the day  of ,  18 — ]  * 

[which  judgment  has  been  duh'  assigned  to  said  C.  F.,  and 
is  now  owned  by  him]   and   that  an  execution  has  been 

duly  issued  thereupon  on  the day  of ,  18 — , 

to  the  sheriff  of  the  proper  county  against  the  property 
of  said  C.  D.,  as  prescribed  in  section  2458  of  the  Code  of 
Civil  Procedure,  and  that  said  execution  has  been  returned 

on  the dnv  of ,  18 — ,  wholly  [or  partly] 

unsatisfied  [or  lias  not  been  returned] ;  and  also  that  F.  M. 
\or  name  corporation]  has  personal  property  of  said  C.  D. 
exceeding  ten  dollars  in  value  \or  is  indebted  to  said  C.  D.  in 
a  sum  exceeding  ten  dollars] : 

[Insert  here  clause  in  brackets,  immediately  preceding 
word  "now,"  in  form  No.  1317,  when  required  by  section 
2434.] 

These  proceedings  may  be  pursued  2432,  Code  Civ.  Pro.     (See  last  clause 

either  alone   or  simultaneously   with  of  that  section.) 

the  proceedings  against  the  debtor  un-         ^  See  Day  v.  Brosnan  (6  Abb.  N.  C, 

der   subdivisions   1  and   2  of  section  312). 


Supplementary  Proceedings.  1189 

Now,  upon  the  application  of  [M.  F.,  attorney  for]  the 
said  A.  B.  \ot  C.  F.]  : 

I  do  hereby  order  and  require  the  said  F.  M.  \or  K.  L., 
president,  etc.,  of  the*  (name  corporation)]  to  attend  and 
be  examined  before  [me^  {or  before  I.  J.,  who  is  hereby 
appointed  referee  for  that  purjDose)],  at,  etc.,  on,  etc.,  at 

o'clock  in  the noon,  concerning  the  said 

property  \or  debt]  [and  that  said  referee  certify  to  me  \or  to 

I.  F.,  a  justice  of  the  Supreme  Court,  residing  in  the 

district,  or  the  county  judge  of  the  county  of )'  all 

the  evidence,  and  the  other  proceedings  taken  by  him]. 

And  I  do  hereby  further  order,  that  the  said  C.  D.  and 
F.  M.  [or  name  of  corporation],  be  and  they  are  hereby 
enjoined  and  restrained  from  making  or  suffering  any  trans- 
fer or  other  disposition  of,  and  from  interfering  with,  the 
said  property  \or  debt]  of  the  said  C.  D.,  until  further 
direction  in  the  premises. 

[And  I  do  hereby  further  order,  that  a  cojDy  of  this  order 
and  of  the  said  affidavit  be  served  uj^on,  and  notice  of  the 
proceedings  subsequent  thereto  be  given  to,  said  C.  D.  (state 
time  and  manner  of  notice).'] 

Dated ,  18—. 

A.  O.,  Judge ^  etc. 

No.  1324. 
Referee's  Return  Pursuant  to  Order. 

(Code  Civ.  Pro.,  §g  2442,  2444.) 

[Title  of  proceeding.] 

Examinations  and  testimony  of  C.  D.,  etc.,  taken  pursu- 
ant to  the  annexed  order  of  Hon.  A.  O.,  judge,  etc.,  dated 

,  18 — ,  by  E.  F.,  referee,  at ,  on  the 

(Jay  of ,  18 — ,  at o'clock  in  the noon 

[and  on  other  days  to  which  the  said  examination  was,  from 
time  to  time,  adjourned,  as  hereinafter  stated]. 

'  The  judge  may,  in  his  discretion,  not  be  appointed  without  such  notice, 

specify  the  officer.     (Code  Civ.  Pro.,  except  as  otlierwise  prescrilu-d  in  arli- 

g  2444.)  cle  second  of  title  twelfth  of  <haplir 

*  See  Code  Civ.  Pro.,  ^  2434.  seventeenth  of  Code  Civ.  Pro.     (Id., 

^  This  requirement  is  in  tbe  discre-  t^  2441.) 
lion  of  the  judge;  hut  a  receiver  can- 


3190  FOKMS    llELATlNCi    TO 

,  18—,  —  A.  M. 

Present,  F.  G.,  for ;  G.  H.,  for . 


Said  C.  D,  having  been  first  duly  sworn  by  said  referee, 
did  depose  as  follows,  being  examined  by  F.  G.,  for . 

[Insert  direct  testimony.] 

And  on  his  cross  examination  by  G,  H.,  for ,  said 

C.  D.  did  further  depose  as  follows. 

[Insert  testimony  upon  cross-examination.] 

And  so  on. 

I,  E.  F.,  referee,  do  hereby  certify  and  report,  that  the 

foregoing  examination  [or  examinations]  of was 

[o?*  were]  taken  before  me  in  the  above  entitled  proceeding, 
pursuant  to  the  annexed  order,  at  the  time[s]  and  place[s] 
above  mentioned.  . 

That  every  answer  or  declaration  of  said  C.  D.,  etc.,  upon 
said  examination[s]  is  therein  inserted. 

That  said  deposition  \or  depositions]  was  \or  were],  when 
completed,  carefully  read  by  me  to  the  said  C.  D.,  etc.,  and 
was  \or  were]  thereupon  subscribed  by  him  \or  by  them] 
in  my  presence. 

And  I  further  certify  and  report,  that  before  entering 
upon  said  examination[s]  or  taking  testimony,  I  subscribed 
and  took  the  oath  required  by  section  2445  of  the  Code  of 
Civil  Procedure,  which  oath  is  annexed  to,  and  returned 
by,  me  with  this  my  report. 

All  of  which  is  respectfully  submitted.* 

Dated ,  18—. 

E.  F.,  Referee. 

No.  1325. 
Oath  of  Referee. 

(Code  Civ.  Pro.,  §  2445.) 

[Title  of  proceeding.  ] 

I,  E.  F.,  the  referee  appointed  in  the  above  entitled  pro- 
ceeding, do  solemnly  swear  that  I  will  faithfuUy  and  fairly 

'  See  section  2460,  as  to  what  ques-  v.   People  ( 17  Hun,   366),  Loomis  v. 

tions  witnesses  are  required  to  answer,  People  (19  Hun,  601),  Dusenburj-  v.  Du- 

and  as  to  use  of  evidence;  and  also  senbury  (63  How.  Pr.,  349;  48  Super. 

People  V.  Spier  (12  Hun,  70),  Barber  Ct.,   205),    Mechanics'    and    Traders' 


SUPPLEMENTAPwY   PROCEEDINGS.  1191 

discharge  my  duty  upon  such  reference,  and  will  make  a 
just  and  true  report  according  to  the  best  of  my  under- 
standing." 

E.  F. 
[Jurat  as  in  form  No.  46.] 


Xo.  1326. 

Affidavit  to  Obtain  Order  Permitting  Person  to  Pay  Debt 

toSheriflf. 

(Code  Civ.  Pro.,  §  2446.) 

[Title  of  proceeding.  ] 
County,  ss.  : 


A.  B.,  of ,  being  duly  sworn,  says,  that  he  is  the' 

[attorney  for  the]  judgment  creditor  in  the  above  entitled 
proceeding. 

That  said  proceeding  was  commenced  before  Hon.  A.  0., 

judge,  etc.,  on  the day  of ,  18 — ,  and  is 

now  pending  before  said  judge,  who,  on  the  day  aforesaid, 
granted  an  order  [or  warrant]  therein  requiring,  etc.  [state 
requirements  of  order  or  warrant]. 

That  no  receiver  has  been  appointed  therein  and  no  re- 
ceivership has  been  extended  thereto. 

That  B.  C,  of ,  or  the  [name  of  corporation]  is 

indebted  to  C.  D.,  the  judgment  debtor  herein,  in  the  sum 

of dollars,  upon  [state  nature  of  indebtedness]  [as 

deponent  is  informed  by  said  B.  C,  whose  affidavit  is  hereto 
annexed,  and  believes  to  be  true].' 

That,  etc.  [as  in  form  No.  209  substantially,  from  (f)].' 

A.  B. 

[Jurat  as  in  form  No.  46.] 

Bank  v.  Healy  (14  Week.  Dig-.,  120),  tered  by  an  officer  designated  in  sec- 
Bacon  V.  Goldsmith  (I  City  Ct.,  462),  tion   842  of  Code  Civ.   Pro.     (§  244;"). 
Selig-man  V.  Wallach  (tJ  Civ.  Pro.  Rep.,  id.)     For   form  of  waiver,    Pee   form 
232),  among  other  cases,  as  to  the  ex-  N...  440,  fiiihstiluting   ther.-iii  Hertu.n 
amitiatidn.     Also  M.itler  of  Roi.ertson  241")  for  section  1016,  Code  Civ.  Pro. 
V.  Hay  (12  Misc., 7).  Weaver  v.  Brydges  ^  As  to  ntalements  upon  iiiformiitlon 
(S.')  H\ii\,  503),  Meyers  v.  IIerl>ert  (64  and    belief,    see   notes   referred  to  in 
Hun,  200),    Barnes  v.  Levy    (23  Civ.  note  1  to  form  No.  1316. 
Pro.  R.,  253),  Blake  v.  Bolte  (10  Misc.,  See,  also,  note  5  to  form  No.  I31.'^>. 
333)  '  Insert  this  clause   when-  ai)i)li<:a- 

-  The  parties  may  expressly  waive  tion  is  made  without  notice, 
the  oath.     The  oath  may  bo  adminis- 


1192  Forms  Relating  to 

No.  1327. 

Notice  of  Application  for  Order  Permitting  Payment  to 
Slierilf  by  Person  Indebted  to  Judgment  Debtor. 

(Code  Civ.  Pro.,  §  3446.) 

[Title  of  i^roceeding.] 

Sirs — Take  notice,  that  an  application  will  be  made  to 

Hon.  A.  O.,  judge  [or  justice]  of  the Court],  at, 

etc.,  on,  etc.,  for  an  order  permitting  B.  C.  [or  name  corpora- 
tion] to  x^ay  to  the  sheriff  of county  the  sum  of 

dollars  on  account  of  the  indebtedness  of  said  B.  C, 

etc.,  to  said  C.  D.,  mentioned  in  the  affidavit  of  A.  B.,  a 
copy  of  which  is  hereto  annexed,  and  herewith  served  upon 
you,  and  for  such  other,  etc. 

That  said  application  will  be  made  upon  the  said  affida- 
vit, and  upon  [name  other  papers].' 

Dated ,  18—. 

[Signature,  etc.,  as  in  form  No.  324.] 

To  [name  persons  notified]. 


No.  1328. 
Order  Permitting  Person  to  Pay  Debt  to  SheriflF. 

(Code  Civ.  Pro.,  §2446.) 

[Title  of  proceeding.] 

It  having  appeared  to  my  satisfaction,  by  the  affidavit  of 
A.  B.,  in  the  above  entitled  jH'oceeding  heretofore  com- 
menced before  me,   dated  ,   18 — ,   that   B.   C,   of 

[or  that  the  (name  of  corporation)],  is  indebted  to 

said  C.  B.,  the  judgment  debtor  herein,  in  the  sum  of 


dollars,  upon,  etc.  [state  nature  of  indebtedness],  and  due 
notice  having  been  given  of  this  application  to  [name  per- 
sons notified]  as  directed  by  me,  and  no  receiver  having  been 
appointed  herein,  and  no  extension  having  been  made  of 
any  receivership  hereto : 
Now,  upon  the  application  of  F.  G.,  counsel  for  said  A.  B., 

*  The  appplication  may  be  made  upon        See,  also  note  1  to  next  form.  No. 
such  notice,  given  to  such  persons  as  the     1328. 
judge  deems  just,  or  without  notice. 
(Code  Civ.  Pro..  §2446.) 


Supplementary  Proceedings.  1193 

the  judgment  creditor  herein,  I,  A.  0.,  the  judge,  etc.,  by 
whom  the  order  [or  warrant]  herein,  by  which  this  proceed- 
ing was  instituted,  was  granted,  do  hereby  order,  pursuant 
to  section  2446  of  the  Code  of  Civil  Procedure,  that  said 
B.  C.  [or  name  corporation]  be  and  he  [or  it]  is  hereby  per- 
mitted to  pay  to  the  sheriff  of county  the  sum  of 

dollars  on  account  of  his  [or  its]  said  indebtedness 

to  said  C.  D.  [said  payment  to  have  the  effect  provided  by 
said  section  2446  of  the  Code  of  Civil  Procedure  ;  that  is  to 
say,  the  same  will  be,  to  the  extent  thereof,  a  discharge  of 
the  said  indebtedness,  except  as  against  a  transferee  from 
the  said  judgment  debtor,  in  good  faith  and  for  a  valuable 
consideration,  of  whose  rights  the  said  B.  C,  etc.,  had 
actual  notice  when  the  payment  was  made].' 

Dated ,  18—. 

A.  O.,  Judge,  etc. 

No.  1329. 

Notice  of  Application  for  Order  that  Debtor  Pay  Over 
Money,  etc. 

(Code  Civ.  Pro.,  §  2447.) 

[Title  of  proceeding.] 

Sirs — Take  notice,  that  upon  the  examination  [and  testi- 
mony] herein,  an  application  will  be  made  to  Hon.  A,  O., 
judge,  etc.,  at,  etc.,  on,  etc.,  for  an  order  directing  C.  D.,  the 
judgment  debtor  herein  [or  name  other  person  as  in  form 
No.  1330],  immediately  to  pay  over  the  sum  of dol- 
lars [or  deliver  the  following  ju'oi^erty,  to  wit  (describing  it)], 
to  the  sheriff  of  the  county  of ,  or  to  A.  M.,  the  re- 
ceiver appointed  herein  [or  whose  receivership  has  been 
extended  to  this  proceeding],  and  for  such  other,  etc." 

Yours,  etc. 
[Signatures,  etc.,  as  in  form  No.  324.] 

To  C.  D.  etc.  [name  other  persons  notified]. 


'  See  Schrauth  v.  Dry  Dock  Savings  Fon  du  Lac  (56  IIow.  Pr.,  449),  Wald 

Bank  (80   N.  Y.,   300;   aff'g  8.   C,  8  man  v.  O'DonnoIl  (f)?  How.  Pr.,  215), 

Daly,  106),  Wright  v.  Calwt  (47  N.  Y.  Rcmncy  v.  Gediu-y  'hi  How.  Pr.  217), 

Super.    Ct.,  229),  Cliaiidlcr  v.   Ci)y  of  fJnissnnick  v.  Iticliards  (2  .\l)lt.  N.  C., 

mo 


1194  FoKMS  Relating  to 

No.  1330. 

Order  Requiring  Delivery  of  Money  or  Property  to  Sheriff 
or  Receiver  by  Judgment  Debtor, 

(Code  Civ.  Pro.,  §  2447.) 

[Title  of  proceeding.] 

It  having  appeared  by  the  examination  [and  testimony] 
taken  in  the  above  entitled  iDroceeding,  that  C.  D.,  the  judg- 
ment debtor  herein,  has  in  his  possession,  or  under  his  con- 
trol, certain  money  [or  personal  property]  belonging  to  him, 
to  wit  [describe  same]  [or  that  one  or  more  articles  of  per- 
sonal property  capable  of  delivery,  to  wit  (describe  same), 
the  right  of  said  C.  T>.  to  the  possession  whereof  is  not  sub- 
stantially disputed,  are  in  the  possession  {or  under  the  con- 
trol) of  G.  H.,  of ],  and  due  notice  of  this  application 

having  been  given  to ,  as  required  by  me  : 

Now,  upon  motion  of  A.  F.,  counsel  for  A.  B.,  the  judg- 
ment creditor  herein,  after  hearing,  etc.,  and  on  reading 
[name  opposing  papers  {or  no  one  appearing  to  oppose)],  I 
do  hereby  order  and  direct  the  said  C.  D.  [or  G.  H.]  imme- 
diately to  pay  the  said  sum  of dollars  [or  to  deliver 

the  said  articles  of  personal  propert}^]  to  the  sheriff  of  the 

county  of [or  to  A.  M.,  the  receiver  appointed  in 

this  proceeding  {or  whose  receivership  has  been  extended 
to  this  proceeding)].' 

Dated ,  18—. 

A.  O.,  Judge,  etc. 

No.  1331. 

Order  Directing  the  Payment  or  Application  of  Money  or 
Property  by  Sheriff. 

(Code  Civ.  Pro.,  g  2449.) 

[Title  of  proceeding.] 
A.  M. ,  having  been,  appointed  receiver  of  the  property  of 

359),  among  other  cases  as  to  such  a  *  See  note  3  to  form  No.  1330. 

payment.     Also,   Grand   Lodge,  etc.,  The  order  is  to  be  made  upon  such 

V.  Man.  Savings  Institution  (12  Misc.,  a  notice,  given  to  such  persons  as  the 

626),  Franey  v.  Smith  (88  Hun,  215).  judge  deems  just,  or  without  notice. 

It  may  not  be  necessary,  although  it  (Code  Civ.  Pro.,  §  2447.) 

seems  proper,  to  insert  the  last  clause  ^  See,  as  to  this   application.    First 

in  brackets  in  the  order.  National  Bank  V.Whitehall  Trans.  Co., 


Sfpplementaey  Proceedings.  1195 

C.  D.,  the  judgment  debtor  herein,  by  my  order,  dated 
18—  [or  the  receivership  of  A.  M.,  of  the  property  of  C.  D,, 
the  judgment  debtor  herein,  having  been  extended  to  the 
proceeding  by  my  order,  dated ,  18 — ] : 

It  is  hereby  ordered,  on  the  application  of  F.  G.,  attorney 

for  said  A.  B.,  after  hearing,  etc.,  that ,  the  sheriff 

of county,   pay  [or  deliver]  to  said  receiver  the 

money  [or  the  proceeds  of  the  property,  or  the  property] 
paid  [or  delivered]  to  him,  pursuant  to  my  order,  made 
herein  on  the day  of ,  18 — ,  after  deduct- 
ing his  fees. 

Dated ,  18—. 

A.  O.,  Judge,  etc. 

[Or  it  having  appeared  to  my  satisfaction  by  the  exam- 
ination of  C.  D.,  the  judgment  debtor  herein  (and  other  tes- 
timony), taken  before  me  {or  before  I.  J.,  referee  herein, 
and  returned  to  me),  that  an  order  appointing  a  receiver  of 
the  property  of  said  C.  D.,  the  judgment  debtor  herein,  or 
extending  a  receivership  of  said  property  hereto  is  not 
necessary ;  now,  upon  the  application  of  M.  F.,  attorney 
for  said  A.  B.,  it  is  hereby  ordered,  that  the  sheriff  of 

county  apply  the  money  heretofore  paid  to  him 

{or  the  proceeds  of  the  property  heretofore  delivered  to  him, 

pursuant  to  my  order  herein,  dated ,  18 — ),  upon  the 

execution  now  in  his  hands  (or  which  may  be  hereafter 
issued  to  him),  in  favor  of  said  A.  B.  against  said  C.  D.] 

Bated ,  18—. 

[Signature  as  above.] 


No.  1332. 

Order  Directing  Balance,  etc.,  to  li)e  Paid  to  Judgment 
Debtor  in  Certain  Cases. 

(Code  Civ.  Pro.,  §2450.) 

[Title  of  proceeding.] 

It  having  appeared  by  the  affidavit  of  A.  B.,  dated,  etc., 

(18    Ilun,   IGl),    Dickinson   v.  Onder-  ('20  Week.  Dif,'..  393),  Miller  v.  LyonH 

donk  (18  ill.,  479),  Griswol<l  V.  Tdini.-  (17  id.,    86),   (inuid    Lod^r,,  K.  of   V. 

kirjs  (7  Daly,  214).  Tinkey  v.  LiinKdnn  v.    Manhattun  SaviiiK-H  lnntitiiti()M  (I'J 

(i:{  Week,  bit,'.,  384),   Mollei-  v.  Weils  Misc.,    (VJt;),     8erveii    v.     Lowerre    (3 

{■2<J  Ilun,  587),    Hayes  v.   McClelland  Misc.,  113). 


1196  Forms  liKLAiiNG  to 

that  the  sum  of —  dollars  has  been  paid  [or  certain 

property,  to  wit :  describing  same,  lias  been  delivered  J  to 

the  sheriff  of  the  county  of [or  to  M.  N.,  appointed 

receiver  of  the  prox)erty  of  C.  D.,  in  the  above  entitled  pro- 
ceeding ;  or  to  whom  a  receivership  was  extended  in  the 
above  entitled  proceeding],   j)ursuant   to  my  order,   made 

herein  on  the day  of ,  18—,  and  that  the 

said  sum  [or  the  sum  of dollars  thereof,  or  the  said 

property,  or  a  portion  of  said  X'l'operty  to  wit  (state  same)], 
still  remains  in  the  hands  of  said  sheriff  [or  of  said  receiver], 
and  that  said  proceeding  has  been  dismissed  [or  discon- 
tinued, or  name  other  cases  provided  for  in  section  2450  of 
the  Code  of  Civil  Procedure] : 

Now,  upon  motion  of  M.   N.,  attorney  for  said  A.  B., 
after  hearing,  etc. : 

It  is  hereby  ordered,  that  the  said  sheriff  [or  receiver]  pay 

the  said  sum  of dollars  [or  the  said  portion  of  said 

sum  of dollars],  remaining  in  his  hands  [or  deliver 

the  said  property,  or  the  said  portion  of  said  projierty  re- 
maining in  his  hands],  to  the  said  C.  D.  [or  to  F.  H.,  who 
appears  by  said  affidavit  to  be  entitled  thereto],  upon  pay- 
ment of  his  fees,  and  all  other  sums  legally  chargeable 
against  the  same. 

Dated ,  18—. 

A.  O.,  Jtidge,  etc, 

No.  1333. 

Aflidavit  of  Service  of  Injunction  Order  and  Order  Requir* 
ing  Debtor's  Attendance  for  Examination. 

(Code  Civ.  Pro.,  §  2452). 

[Title  of  proceeding.] 

County,  ss.  : 

E.  F.,  of ,  being  duly  sworn,  says,  that  on  the 

day  of ,  18 — ,  he  served  the  annexed  origi- 


nal order,  in  the  above  entitled  proceeding,  upon  C.  D.  [the 
judgment  debtor  in  the  above  entitled  proceeding],  by  de- 
livering to  said  C.  D.  a  copy  thereof,  and  oi  the  affidavit  of 
A.  B.,  therein  mentioned,  upon  which  the  same  was  made, 
and  by  exhibiting,  at  the  same  time,  the  said  annexed  origi- 


SUPPLEMEINTAKY   PROCEEDINGS.  1197 

nal  order,  under  the  hand  of  the  judge  making  it,  to  the 
said  C.  D. 

That  said  service  was  made  at  the  [city]  of ,  in 

the  county  of ,  in  this  State'  [where  said  C.  I),  re- 
sided at  the  time  of  such  service  ;  or  that  said  0.  D.,  at  the 
time  of  such  service,  resided  {or  had  an  office  for  the  regu- 

hir  transaction  of  business  in  person),  at ,  in  the 

county  of ,  in  this  State,  or  resided  out  of  this 

State]/ 

E.  F. 
[Jurat  as  in  form  No.  46.] 


No.  1334. 
Sheriff's  Return  of  Arrest  Pursuant  to  Warrant. 

(Code  Civ.  Pro.,  §3453.) 

I  certify  that,  on  the day  of ,  18 — ,  at 

-,  in  the  county  of ,  I  arrested  the  within 


named  C.  D.,  pursuant  to  the  within  warrant,  and,  at  the 

same  time  and  place,  delivered  to  him  a  copy  of  the  said 

warrant,  and  of  the  affidavit  therein  mentioned,  upon  which 

the  same  was  granted,  and  that  I  have  produced  the  said 

C.  D.  before  Hon.  A.  O.,  judge,  etc.,  at  the  time  and  place 

mentioned  in  said  warrant,  as  I  am  thereby  required. 

Dated ,  18—. 

[Signature  as  in  form  No.  35.] 


No.  1335. 
Order  Dismissing  or  Discontinuing  Proceeding. 

(Code  Civ.  Pro.,  §  2454.) 

[Title  of  proceeding.] 
Upon  the  application  of  M.  N.,  attorney  for  A.  B.,  the 

^  Ka  to  service  upon  a  corporation  to  ting  to  examination  without  objection, 

■which  this  affi<lavit  may  be  adapted,  (Newell  v.  Cutler,  19  II un,  74.) 
see  Code  Civ.  Pro.,  §  2452;  Logan  v.         "These  statements  in  brackelH  relate 

McCall  Pub.  Co.  (140  N.  Y.,  447,  449).  to  the  requirements  of  section   24.'')9, 

An  irregularity  in  service,  such  as  Code  Civ.  Pro.,  in  the  case  of  the  8»'r- 

failure  to  show  the  original  ordnr,  is  vice  of  an  order  for  (hi;  attendance  of 

waived  by  aj^pearance,   and  submit-  the  judgment  debtor,  etc. 


1198  Forms  Relating  to 

judgment  creditor  in  the  above  entitled  proceeding,  and  on 
filing  the  affidavit  of  said  A.  B.,  dated ,  18 — ,  show- 
ing that,  etc,  [state  substance  of  affidavit],  and  after  hear- 
ing, etc.: 

I  do  hereby  order,  that  the  above  entitled  proceeding  be 
and  the  same  is  hereby  discontinued  upon  the  following 
terms,  namely  [state  same].  * 

Dated ,  18—. 

A.  O.,  Judge,  etc. 

[Or  it  having  appeared  to  me  by  the  affidavit  of  C.  D., 

dated ,  18—,  that  A.  B.,  the  judgment  creditor  in 

the  above  entitled  proceeding,  has  unreasonably  neglected 
{or  delayed)  to  proceed  therein  {or  that  the  judgment  upon 
the  return  of  an  execution  upon  which  this  proceeding  was 
brought  has  been  satisfied),  and  due  notice  of  this  applica- 
tion having  been  given  to  said  A.  B.,  and  to  (name  other 
persons  served),''  and  on  motion  of  M.  F.  counsel  for  (said 
C.  D.),  and  after  hearing,  etc.,  and  on  reading  (name  oppos- 
ing papers)  (or  no  one  appearing  to  oppose) :  I  do  hereby 
order,  that  the  above  entitled  i^roceeding  be  and  the  same 
is  hereby  dismissed,  upon  the  following  terms  (state  same)]. 

Dated ,  18—. 

A.  0.,  Judge,  etc. 

No.  1336. 
Order  Directing  Payment  of  Costs  to  Judgment  Creditor. 

(Code  Civ.  Pro.,  $5  2455.) 

[Title  of  proceeding.] 

I  do  hereby  order  and  allow  to  A.  B.,  the  judgment  cred- 
itor herein,  upon  the  application  of  J.  C,  attorney  for  said 
A.  B.,  the  sum  of dollars,  as  costs,"  in  this  proceed- 
ing, and  direct  the  same  to  be  paid  by  the  sheriff  of 

'SeeBallouv.Bo]and(14IIun,  355),  See,  also,  Fredericks  v.  Niver  (28 

Stanley  v.  Lovett  (14  id  ,  412),   Ken-  Hun,  417),  Valiente  v.  Bryan  (3  Civ. 

nedy   v.   Norcott   (54  How.  Pr.,  87),  Pro.  Rep.  [Bi-owne],   358  ;   S.  C,   05 

Sch.anck  v.  Conover  (56  id.,  437).  How.  Pr.,  203),  Serven  v.  Lowerre  (3 

*  This  notice  is  only  to  be  given,  it  Misc.,  113),   Hutson  v.  Weld  (38  Hun, 

seems,  when  a  receiver  has  been  ap-  142),  Griimel  v.  Sherman  (19  Civ.  Pro., 

pointed.     (Code  Civ.  Pro.,  §  2454.)  139).  Colne  v.  Girard  (19  Abb.  N,  C, 

^  As  to  amount  of  costs,  etc.,  which  288),  Boelger  v.  Swivel  (1  How.  Pr. 

mav  be  allowed,  see  Code  Civ.  Pro.,  [N.  S.],  372),  Putnam  v.  Anthony  (7 

§  2455.  State  Rep.,  580). 


Supplementary  Proceedings.  1199 

county  [or  by  M.  N.,  receiver  herein],  out  of  any  money 

which  has  come,  or  which  may  come,  to  his  hands  [or 

within days  by  the  said  C.  D.,  the  judgment  debtor 

herein,  etc.]. 

Dated ,  18—. 

A.  0.,  Judge,  etc. 


No.  1337. 
Order  Directing  Payment  of  Costs  to  Judgment  DeMor. 

(Code  Civ.  Pro.,  §  2456.) 

[Title  of  proceeding.  ] 

C.  D.,  the  judgment  debtor  in  this  proceeding  [or  de- 
scribe other  part}'  examined],  having  been  examined  lierein,, 
and  property  applicable  to  the  payment  of  the  judgment 
not  having  been  discovered  in  the  course  of  this  proceeding : 

Now,  upon  the  application  of  G.  H.,  attorney  for  said 

C.  D.,  I  do  hereby  allow  to  said  C.  D.  the  sum  of 

dollars,  as  costs  herein,  and  I  hereby  direct  the  payment 
of  said  amount  by  A.  B.,  the  judgment  creditor,  within 
days  after  the  personal  service  upon  him  of  a  cer- 
tified copy  of  this  order,  and  a  demand  thereof  by  said 
judgment  debtor  or  his  lawful  agent  or  attorney  [or  by 
A.  M.,  the  receiver  of  the  j)roperty  of  said  C.  D.,  herein; 

or  by  the  sheriff  of  the  county  of ,  out  of  any 

money  which  has  come,  or  may  come,  to  the  hands  of  said 
receiver  {or  sheriff)].' 


Dated ,  18—. 


A.  O.,  Judge,  etc. 


'This  clause  in  brackets  can  only  be  Y.  Super.  Ct.,  11),  Gamman  v.  Berry 

inserted  when  the  allowance  is  made  (84    Hun,   138),  Kendrick  v.  Wamiall 

to  another  person  than   the  judf^ment  (88  Hun,51it),  RinelandiM- v.Dunhain(2 

debtor.     (Code  Civ.  Pro.,  §  'J4r)6.)  Civ.  Pro.  [Browne]  32).  Keller  v.  Z.'ij,'- 

Under   a   similar    provision   of  the  ler  (.5  Month.  Law  Bui.,  IH),  MiGili  v. 

Code  of  Procedure,  it  has  been  cua-  Weil   (19   Civ.  Pro.  U.,  43),  Bareilhor 

tomary  to  direct  the  amount  allowed  v.  Brosche  (iil  ,  44(3),   Duflua   v.    Cole 

as   costs    to    be    deducted    from   the  (39   Stale   Rep.,  838),  Mc^ycrs  v.  Her- 

amount   of  the  judj^ment,   when    the  Ijert  (G4    Ilun,  200),  Aldrith  v.  Davis 

allowance  is  made   to   the   judg'ment  (4')  State  Rcj)  ,  .OST),  Vi-i  iiiont   Marblu 

debtor.  Works  v.  Wilkes  (tVJ  State  R.'j».,  121), 

For  jiroceeding-s  for  a  contemjit  in  Cauda  v.  (iollner  (73   Hun.  493).  G(>r- 

dlsobeying'    order,   see    section    24r(7,  ton    Carriajfe    Co.    v.    Ricluuvlson    (C 

Code  Civ.  Pro.,  and  forms  Nos.  118.''),  Misc.,    4G0),    Wolf  v.    Biiltner  («  id., 

etc.;   and  see  Tremain   v.  Richardson  119),  Do  Wilt    v.  (Junil   (-'4    Civ.    Pro. 

(GS  N.  Y.,  617),  Reynolds  v.  Gilchn-st  R.,  4r(;),  Blake  v.  Boll.- (10  Misc..  333), 

(9    Hun,    203),  Tinker    v.  Crooks    (22  Wolfe  v.  KniKlit  ( 1")  Misc..  438). 

Hun.  .'>79),  People  v.  Jones  (1  Al>b.  N.  See.  also,  cast-s  cite«l  in  note  to  form 

C,  172),  Lehmaier  y.  Griswold  (K!  N.  No.  133G. 


1200  Forms  Relating  to 

No.  1338. 

Affidavit  to  Obtain  Exainiiiatioii  of  Judgnient  Debtor,  etc., 
when  Execution  has  been  Issued  Pursuant  to  Section 
jyjrl  of  Code  of  Civil  Procedure. 

(Code  Civ.  Pro.,  §2461.) 

As  in  form  No.  1315  to  [**],  and  from  thence  as  follovrs : 
And  was  rendered  pursuant  to  the  i)rovisions  of  article 
third  of  title  fifth  of  chaj^ter  fifteenth  of  the  Code  of  Civil 
Procedure,  for  the  amount  determined  to  be  unpaid  upon  a 

judgment  originally  rendered  on  the day  of , 

18 — ,  against  G.  AV.  T.  and  said  defendant,  in  the 

Court,  upon  their  joint  liability,  and  for  the  costs  of  the 
action  in  which  the  first  above  mentioned  judgment  was 
rendered. 

That  an  execution  was  duly  issued  upon  the  judgment 

aforesaid,  rendered  against  said  C.  D.  on  the day 

of ,  18 —  [describing  judgment  upon  which  pro- 
ceeding is  brought].' 

(Conclude  as  in  form  No.  1315  from  [f]). 

A.  B. 
[Jurat  as  in  form  No,  46.] 


Article  Second. 

FORMS  RELATING  TO  THE  RECEIVER. 

(Code  Civ.  Pro.,  Ch.  17,  Tit.  12,  Art.  2.) 

No.  1339.     Notice  of  application  for  appointment  of  receiver. 
1340.     Order  appointing  receiver. 


No.  1339. 
Notice  of  Application  for  Appointment  of  Receiver. 

(Code  Civ.  Pro.,  §  2464.) 

[Title  of  proceeding.] 
ToC.  D.,  etc.: 
Take  notice,  that  an  application  for  an  order  appointing 


'  For  form  of  complaint  upon  judg-    for  form  of  judgment  in  sucli  an  ac- 
ment   against  joint  debtor   not   origi-     tion,  see  form  No.  1029. 
nally  served,  see  form  Nov  1028;  and        This  form  may  also  be  incorporated 

in  forms  Nos.  1316,  1318. 


Supplementary  Proceedings.  1201 

a  receiver  of  your  property  [or  of  the  property  of  C.  D.,  the 
judgment  debtor]  in  the  above  entitled  proceeding,  will  be 

made  to  Hon.  A.  O.,  judge  [o7- justice]  of  the Court, 

at,  etc.,  on,  etc.,  and  for  such  otlier  or  further  relief  as  may 
be  just. 

That  said  application  will  be  made  upon  [name  papers].' 

Dated ,  18—. 

Yours,  etc., 

F.  C,  Attorney  for  A.  B. 
[Office  address."] 


No.  1340. 
Order  Appointing  Keceiver. 

(Code  Civ.  Pro.,  §2464.) 

[Title  of  proceeding.] 

An  order  having  been  heretofore  made  by  me  herein  on 
the day  of ,  18—,  requiring  C.  D.,  the  judg- 
ment debtor  {or  otherwise  describe  person],  to  attend  and 
be  examined  concerning  his  property  \or  state  other  require- 
ment of  the  order]  before  me  \or  before  I.  J.,  a  referee 
appointed  for  that  purpose  {or  a  warrant  having  been  here- 
tofore issued  bj'  me  to  the  sheriff  of county)],  as 

prescribed  in  article  first  of  title  twelfth  of  chapter  seven- 
teenth of  the  Code  of  Civil  Procednre,  whicli  order  \or  war- 
rant] w^as  returnable  to  me,  and  the  said  C.  D.  having  been 
accordingly  examined  before  me  {or  before  said  referee], 
and  at  least  two  days'  notice'  of  tliis  application  for  an 
order  appointing  a  receiver  herein  having  l)een  given  to  the 
said  C.  D.  personally  {or  I  being  satisfied  that  said  C.  D. 
cannot,  with  reasonable  diligence,  be  found  within  tlie  State, 
liaving  dispen.sed  witii  notice  of  this  application  for  the  ap- 

•  See   Cofle  Civ.  Pro.,  §   2464,    and  Farm  Co.  v.  Burr  (11  Misc.,  638). 

Ashley  v.  Turn.ir  (22  Hun,  226),  Whit-  '■'  See  note  2  ti>  I'onii  No.  122. 

ney  v.  Welch  (2  Ahh.  N.  C,  442),  Mor-  ^  Wheii  the  onier  to  attend  and  be 

pan  V.  Van  KohnHlamm  (0  Daly,  35.")),  examined,  or  th«i    warrant,   haw   heen 

Goildard    v.    Stiles   (90    N.    Y  ,    199),  served    ui)On  the  judj,'ment  debtor,  a 

Strong  v.  Epstein  (14  Abb.  N.  C.,  322;  receiver  may  l)e  a|i|)ointcd  upon  the 

8.   C,   6  Civ.    Pro.    R.   [Browne],  3B),  return  day  thereof,  or  at  the  rIoHe  of 

Grace  v.  Curti.ys  ("{  Misc.,  .^i^S),  Sayles  the  examination,  without  furUit-r  notice 

V.  best  (49  State  Hep.,  4i;0),  Uaker  v.  to  him.     (Code  Civ.  Pro.,  }  2464.) 
Brundaj."-    (79    iJun,    382),    Sheffield 
151 


1202  Forms  Relating  to 

pointment  of  a  receiver  herein  {or  having  directed  notice  of 
this  application  to  be  given  by,  state  manner  of  service), 
and  said  notice  having  been  given  as  required  by  nie],  and 
I  having  ascertained  by  tlie  oath  of  said  C.  D.,  the  said  judg- 
ment debtor  [or  state  how,  otherwise],  tliat  no  action  speci- 
fied in  article  first  of  title  fourth  of  cha^oter  fifteenth  of  the 
Code  of  Civil  Procedure,  or  special  proceeding  instituted  as 
prescribed  in  article  first  of  title  twelfth  of  chai^ter  seven- 
teenth of  the  Code  of  Civil  Procedure,  is  pending  against 
said  judgment  debtor  [o7'^tate  that  an  action  or  proceeding, 
describing  it,  has  been  commenced,  and  whether  or  not  a 
receiver  has  been  appointed  therein,  and  that  due  notice 
has  been  given  of  the  api)lication  to  the  judgment  creditor 
prosecuting  said  action  or  proceeding,  in  such  manner  as 
directed  by  (me)] : ' 

Now,  therefore,  I  do  hereby,  upon  the  application  of  F.  C, 
attorney  for  said  A.  B.,  and  after  hearing,  etc.,  and  on  read- 
ing [name  opposing  papers  {or  no  one  appearing  to  oppose)], 

appoint  C.  H.,  of ,  receiver  of  the  property  of  the 

said  C.  D.,  the  Judgment  debtor  herein  [or  do  hereby  ex- 
tend the  receivership  of  said to  this  proceeding],* 

upon  the  said  receiver  executing,  acknowledging  and  filing 
with  the  clerk  of  this  court,  a  bond  in  the  form  required  by 

law  to  the  people  of  this  State,  in  the  penalty  of 

dollars,  with  two  sufficient  sureties,  to  be  approved  as  to  its 
form  and  manner  of  execution  by  [a]  judge  of  this  court  [or 
by  me],  conditioned  for  the  faithful  discharge  of  his  duties 
as  such  receiver. 

[And  I  do  hereby  order  and  direct  the  said  C.  D,,  the 
judgment  debtor  herein,  to  execute,  acknowledge  and  de- 
liver to  the  said  receiver,  a  good  and  sufficient  deed  and  con- 
veyance of  all  his  real  estate,  wheresoever  situated/J 

And  I  do  hereby  further  order,  that  there  be  allowed  to 
A.  B.,  the  judgment  creditor  herein,  the  sum  of 

*  See  section  2465,  Code  Civ.  Pro.  out  notice.  See,  also,  Merry  v.  Wil- 
2  See  section  2466,  Code  Civ.  Pro.,  cox  (92  Hun,  210,  213). 
and  State  Bank  of  Syracuse  v.  Gill  (23  ^  This  clause  is  no  longer  necessary 
Hun,  410).  That  a  non-resident  of  the  unless  in  case  of  real  estate,  etc.,  situ- 
State  cannot  be  appointed  receiver,  ated  in  a  foreign  State.  (Code  Civ. 
and  that  a  receiver  cannot  act  as  such  Pro.,  §  2468,  subd.  1 ;  Manning  v. 
after  ceasing  to  be  a  resident,  see  Evans,  19  Hun,  500 ;  Buchanan  v. 
subd.  5  of  §  2469,  Code  Civ.  Pro.,  Hunt,  21  Week.  Dig.,  288  ;  S.  C,  98 
added  to  that  section  by  ch.  85  of  N.  Y.,  560;  rev'g  S.  C,  33  Hun,  329). 
Laws  of  1892,  taking  effect  September  See,  also,  Moore  v.  Duffy  (74  Hun,  78) ; 
1, 1896.  But  that  section  by  its  terms,  Maders  v.  Whallon  (id.,  372).  And  see 
does  not  aflFect  the  title  of  a  purchaser  cases  cited  in  note  2  to  this  form,  page 
in  good  faith,  without  notice,  and  for  a  1203. 

valuable    consideration  ;  or  the   pay-        It  cannot  be  granted  62;  parte.  (Reed 

ment  of  a  debt  in  good  faith,  and  with-  v.  Champagne,  5  Week.  Dig.,  227.) 


Supplementary  Proceedings. 


120; 


dollars  ^  as  costs,  and  I  hereby  direct  the  payment  thereof 
by  said  receiver  out  of  any  money  which  has  come  or  may 
come  into  his  hands  as  such  receiver  [or  by  the  said  C.  D., 
within days  after  the  service  upon  him  of  a  cer- 
tified copy  of  this  order,  and  a  demand  by  the  said  A.  B., 
or  his  duly  authorized  attorney,  for  the  payment  thereof]. 

And  it  appearing  by  the  affidavit  of ,  dated,  etc., 

that  sufficient  grounds  exist  therefor,  I  do  hereby  enjoin, 
etc.  [add  injunction  as  in  form  No.  1323]." 


TITLE  XIII. 

FORMS  RELATING  TO  PROCEEDINGS  TO   COMPEL  DELIVERY  OF 
BOOKS  AND  PAPERS  TO  PUBLIC  OFFICERS. 

(Code  Civ.  Pro.,  ch.  17,  tit.  13.) ' 

No.  1338a.  Complaint  to  compel  delivery  of  books,  etc. 

1338b.  Order  to  show  cause  granted  upon  complaint,  form  No.  1338a. 

1338c.  Affidavit  of  delivery  of  books,  etc. 

1338d.  Order  discharging  defendant  on  return  of  order  to  show  cause. 

1338e.  Warrant  to  commit  the  person  withholding. 

1338f.  Search  warrant  for  such  books  and  papers  withheld. 


'  See  section  2455  as  to  amount  of 
costs  which  may  be  allowed,  and  how 
made  payable.  See,  also,  Serven  v. 
Lowerre  (3  Misc.,  113). 

'  See  section  2451,  Code  Civ.  Pro., 
as  to  iiijuni;tion.  It  may  be  made 
simultaneously  with  the  order  or  war- 
rant by  which  the  proceeding  is  insti- 
tuted, and  uj)on  the  same  papers,  or 
afterwards  upon  an  affidavit  showing 
sufficient  grounds  therefor. 

An  order  restraining  the  transfer  of 
property  "until  further  order  in  the 
premises,"  is  superseded  by  an  order 
appointing  a  receivei-,  and  a  subse- 
quent transfer  is  not  a  contempt. 
(People  V.  Randall,  IS  N.  Y.,  416; 
Morris  v.  First  Nat.  Bank,  68  id.,  362.) 

As  to  vesting  of  Ihe  property  of 
judgment  deV)tor  in  the  receiver,  see 
Code  Civ.  Pro  ,  }§  2468,  2469 ;  and 
fif  ft.  among  other  cases,  Peters  v.  Carr 
(2  Dem..  22),  Faneuil  Hall  Nat.  Bank 
v.  BiiPsing  (147  N.  V.,  66rj),  Smith  v. 
McQiia<le  (59  Hnn,  374),  Gilford  v. 
Rising  (.')9  id  ,  42),  Palmer  v.  Colville 


(63  id.,  536),  Metcalf  v.  Del  Valle  (64 
id.,  245),  Stearns  &  Co.  v.  Eaton  (43 
State  Rep.,  tO;")).  Matter  of  Crane 
(81  Hun.  96),  Moore  v.  Duffy  (74 
id.,  78),  Bennett  v.  Wolfolk  (SO  i<l., 
390),  Ward  v.  Petrie  (92  id.,  605), 
Peltibone  v.  Drakeford  (37  id.,  628), 
Moore  v.  Toylor  (40  id.,  56),  Smith  v. 
Tozer  (42  id.,  22),  McCoikle  v.  Her- 
mann (117  N.  Y.,  297)  O'Connor  v. 
Mechanics'  Bank  (124  id.,  324),  NicoU 
V.  Spowers  (105  id.,  1),  Stephens  v. 
Perrine  (143  id.,  476).  Matter  of  Rainey 
(26  N.  Y.  Smp.,  872),  Sheffield  Farm 
Co.  V.  Burr  (11  Mi.-c,  63S). 

The  order  is  to  be  tiled  and  i-econled. 
(Code  Civ.  Pro.,  6  2467.) 

As  to  duty  of  county  clerk  ujion 
filing  of  order,  or  certllied  cojiy  there- 
of, see  section  2170,  Code  Civ.  Pro.; 
as  to  what  c^oiirt  has  (•(inti-nl  of  the 
receiver,  see  sc(!tion  2471,  id.;  Wing  v. 
DiHHe  (15  Hun,  190),  Pool  v.  Hpoflord 
(14  Hun,  369). 

'  This  title  (13),  consisting  of  nection 
2471a  of  the  Code  of  Civil  Proccdtire, 


1203a  Forms  Relating  to 

No.  1338a. 

Complaint  to  Compel  Delivery  of  Books,  etc. 

(Code  Civ.  Pro.,  §  2471a.) 

State  of  New  York,  > 

>  SS,  .' 

County  of  ,      ) 

To  the  Hon.  D.  C.  JL,  Justice  of  the  Supreme  Court  {or,  Hon. 
J.  H.  C,  county  judge  of  the  county  of )  ; 

A.  B.,  of  said  county,  being  duly  sworn,  makes  com- 
plaint against  C.  D.,  late  [town  clerk  of  the  town  of , 

in  said  county],  and  says   tliat    tlic  deponent  was  duly 

elected  [town  clerk  of  said  town  of ,  at  an  annual 

town    meeting  of  such    town,  held  on  the ■  day  of 

■ ,  1 — ];  that  he  has  taken  and  filed  the  oath  pre- 
scribed by  law. 

That  by  virtue  of  such  election  he  is  successor  to  the 
said  C.  D.,  late  [town  clerk]  as  aforesaid;  that  he  has  re- 
quired and  demanded  that  the  said  CD.  deliver  over  to 
him,  as  such  successor,  all  the  records,  books  and  papers 
in  his  possession  or  custody,  or  under  his  control,  belong- 
ing or  appertaining  to  said  office  of  [town  clerk]. 

And  this  deponent  further  alleges  that  the  said  CD. 
has  refused  and  neglected  so  to  deliver  such  records, 
books  and  papers,  or  any  part  thereof;  and  that,  as  this 
deponent  is  informed  and  believes,  said  C  D.  has  in  his 
possession,  or  under  his  control,  the  following  records, 
books  and  papers  appertaining  to  the  said  office  of  town 
clerk,  to  wit:  [describing  them],  and  that  he  unjustly  and 
unlawfully  withholds  the  same  from  this  deponent.^ 

A.  B. 
[Jurat  as  in  form  No.  4G.] 

was  added  to  that  statute  by  Laws  of  provisions  of  1  R.  S.,  125.  §51,  as  to 

1893,  chapter  179.     See,  also.  Matter  rules  jjovei-ninj^  such  apiilication. 
of  Bradley  (141  N.  Y.,  527),  in  which         'See.  also,  form  No.   lOo'S,  at  page 

the  ajiplication  was  made  under  the  930,  ante,  and  note  3  thereto. 


Supplementary  Proceedings.  1203b 

No.  133Sb. 
Order  to  Show  Cause  Granted  upon  Complaint,  form  No.  1338a. 

(Code  Civ.  Pro.,  §  2471a.) 

State  of  New  York, 


ss. 
County  of ,      ) 

[Title  of  proceeding.] 

Complaint  having  been  made  to  me,  the  undersigned, 
as  follows,  to  wit :  [insert  a  copy  of  the  complaint  form 
No.  1338a],  and  being  satisfied  by  the  oath  of  the  said 
complainant  [add  "and  other  testimony  offered,"  if  any 
such  was  offered]  that  the  said  books  and  papers  [or 
either,  according  to  the  fact]  are  w^ithheld  as  aforesaid,  I, 
therefore,  pursuant  to  the  provisions  of  the  statute  in  such 
case  made  and  provided,  do  hereby  order  and  direct  the 
said  CD.,  the  person  so  refusing,  to  show  cause  before 

me  at  [my  office  in  the  (city)  of ,  in  said  county,  on 

the  tenth  day  of  May,  instant,  at  10  o'clock  in  the  fore- 
noon], why  he  should  not  be  compelled  to  deliver  the 
same  books  and  papers  [or  either,  as  the  case  may  be].^ 

[Signature.] 

Dated,  etc. 

No.  1338c. 

Affidavit  of  Delivery  of  Books,  etc. 

(Code  Civ.  Pro.,  §  2471a.) 

[Title  of  proceeding.] 

State  of  New  York,  ] 

'  }  ss. : 

County  of ,      j 

C.  D.,  of  the of ,  in  said  county,  being  duly 

sworn,  says  that  he  is  the  person  mentioned  as  late  [insert 
name  of  office]  in  a  certain  affidavit  and  complaint  made 

by  one  A.  B.,  before  the  Hon. ,  justice  of  the 

Supreme  Court  [or,  county  jud,L,^e  of county],  on  the 

(lay  of ,  1 — ,  and  that  he  has  truly  delivered 

'  See,  also,  form  No.  1039,  ante,  pajfe  930.  antl  nolo  1  Iherolo. 


1203c  Forms  Relating  to 

over  to  said  A.  !>.,  his  successor  in  said  office  of  [naming 
same],  all  the  books,  records  and  papers  in  his  cu.stody  or 
appertaining  to  his  office  within  his  knowledge,  or  to  his 
belief.i 

C.  D. 
[Jurat  as  in  form  No.  46.] 


No.  1338d. 
Order  Discharging  Defendant  on  Eeturn  of  Order  to  Show  Cause. 

(Code  Civ.  Pro.,  ^  2471a.) 

Same,  substantially,  as  form  No.  1041,  p.  932,  ante.^ 


No.  1338e. 

Warrant  to  Commit  the  Person  Withholding. 

(Code  Civ.  Pro.,  §  2471a.) 

The  People  of  the  State  of  Neiu  York,  to  the  Sheriff  of  the 

County  of : 

Complaint  having  been  made  to  the  undersigned,  as 
follows,  to  wit:  [insert  a  copy  of  the  complaint.]  Where- 
upon, pursuant  to  the  provisions  of  the  statute,  being 
satisfied  by  the  oath  of  the  said  complainant  [add  "and 
other  testimony  ofiered,"  if  any  such  was  offered]  that 
the  said  books  and  papers  [or  either,  according  to  the 
fact]  were  withheld  as  aforesaid,  the  undersigned  granted 
an  order,  directing  the  said  CD,,  the  person  so  refusing, 
to  show  cause  before  the  undersigned  at,  etc.  [as  in  the 
order]  why  he  should  not  be  compelled  to  deliver  the 
same  books  and  papers  [or  either,  as  the  case  may  be],  at 
which  place  and  time  so  appointed  [or  if  at  any  other 
time  to  which  the  matter  was  adjourned,  so  state]  upon 

'  See   section   2471a  of  the  Code  of  the  justice  or  judge  on  the  return  of 

Civil   Procedure,   as  to  this  affidavit,  the  order. 

and   see   note  3  to  form  No.  103S,  at        "  See  section  2471a  of  Code  of  Civil 

page  930,  ante,  and  notes  1  and  2  to  Procedure,  and  note  3,  page  932,  ante, 

form   No.    1040,    at   page   932,    ante,  to  form  No.  1041. 
This  affidavit   must  be   made   before 


Supplementary  Proceedings.  1203d 

due  proof  being  made  of  the  service  of  the  said  order, 
the  undersigned  proceeded  to  inquire  into  the  circum- 
stances, and  the  said  C.  D.  having  omitted  to  make  the 
oath  prescribed  by  the  statute  in  such  case  made  and 
provided,  and  it  appearing  to  tlie  undersigned  that  the 
said  books  and  papers  [or  either  of  them,  to  be  described] 
are  withheld  as  aforesaid  (*)  ; 

Now,  therefore,  you  arc  commanded  that  you  take  the 
said  CD.,  if  he  may  be  found  in  your  bailiwick,  and 

commit  him  to  jail  of  the  said  county  of ;    there  to 

remain  until  he  shall  deliver  the  said  books  and  papers 
[or  either,  or  such  of  them  as  are  withheld],  or  be  other- 
wise discharged  according  to  law. 

Witness ,  Justice  of  the  Supreme  Court  (or  County 

Judge  of county),  at  the   (city)  of ,    this . 

day  of ,  1 } 

[Seal.]  [Signature.] 


No.  1338f 

Search  "Warrant  for  such  Books  and  Papers  Withheld. 

(Code  Ci\-.  Pio.,  §  •2471a.) 

Same  as  form  No.  1042a,  ante.'^ 


*  See,  also,  form  No.  1042,  page  932,         '  See   form   No.    1042a,  and  note  1 
ante,   and    note  1    thereto,   and    see     thereto, 
section  2471a  of  Code  of  Civ.  Pro. 


1204 


Forms  Relating  to 


CHAPTER  XVIII. 

FORMS    RELATING  TO   SURROGATES'  COURTS  AND  PROCEED- 
INGS THEREIN. 

(Code  Civ.  Pro.,  Ch.  18.) 

TITLE  I.  Forms  relating  to  the  organization,  jurisdiction  and  powers  of 
the  court ;  duties,  powers  and  disabilities  of  the  surrogate  and 
to  miscellaneous  provisions. 

TITLE  II.  Forms  relating  to  provisions  relating  generally  to  the  proceed- 
ings in  surrogates  courts,  and  to  appeals  from  those  courts. 

TITLE  HI.  Forms  relating  to  granting  and  revoking  probate,  letters  testa- 
mentary and  letters  of  administration,  to  foreign  wills  and 
ancillary  letters. 

TITLE  IV.  Forms  relating  to  proceedings  by  or  against  an  executor  or 
administrator,  touching  the  administration  and  settlement  of 
the  estate. 

TITLE  V.  Forms  relating  to  disposition  of  the  decedent's  real  property,  for 
the  payment  of  debts  and  funeral  expenses,  and  to  distribu- 
tion of  the  proceeds. 

TITLE    VI.     Forms  relating  to  provisions  relating  to  a  testamentary  trustee. 

TITLE  VII.     Forms  relating  to  provisions  relating  to  a  guardian. 

TITLE  I. 
AuTi:.LE  First. 

FORMS  RELATING  TO  THE  JURISDICTION  OF  THE  COURT  AND 
AUTHORITY  OF  THE  SURROGATE. 

(Code  Civ.  Pro.,  Ch.  18,  Tit.  1,  Art.  1.) 

No.  1341.     Subpoena  in  surrogate's  court. 


No.  1341. 
Subpoena  in  Surrogate's  Court. 

(Code  Civ.  Pro.,  §  2481,  subd.  3.) 

TTie  People  of  the  State  of  New  Yorlc^  hy  the  grace  of  God 
free  and  independent. 

To ,  greeting : 

We  command  you,  that,  all  and  singular  business  and 
excuses  being  laid  aside,  you  and  eacli  of  you  appear  and 
attend  before  the  surrogate  of  the  county  of ,  at 


SUKKOGATES'    CoURTS.  1205 

a  surrogate's  court,  to  be  held  in  and  for  the  county  of 

,  at  the  surrogate's  office  in  the of , 

on  the  — day  of ,  18—,  at o'clock  in 

the noon,  to  testify  and  give  evidence  in  a  certain 

special  proceeding  now  pending  in  said  court,  entitled  "In 
the  matteT  of ,  late  of  the of ,  de- 
ceased;" and,  for  a  failure  to  attend,  you  will  be  deemed 
guilty  of  a  contempt  of  court,  and  liable  to  pay  all  damages 
sustained  thereby  by  the  party  aggrieved,  and  forfeit  fifty 
dollars  in  addition  thereto.' 

In  witness  whereof,  we  have  caused  the  seal  of  office  of 
our  said  surrogate  to  be  hereunto  affixed. 

Witness,  F.  W.,  surrogate  of  our  said  county,  at  the 

•  of ,  the day  of ,  18 — . 

[L.  s.]  F.  W.,  Surrogate 

\or  A.  F.,  Clerk  of  the  Surrogate's  Court]. 


Article  Second. 

forms  relating  to  the  general  duties  and  disabili- 
ties of  the  surrogate  or  temporary  surrogate, 

(Code  Civ.  Pro.,  Ch.  18,  Tit.  1,  Art.  2.) 

No.  1343.     Certificate  of  surrogate  of  bis  disqualification  to  act  in  a  particular 
matter. 

1343.  Petition  for  order  of  general  term  upon  disqualification,  etc.,  of 

surrogate. 

1344.  Order  of  general  term  upon  petition  (form  No.  1343). 


No.  1342. 

Certificate  of  Surrogate  of  His  Disqualification  to  act  in  a 
Particular  Matter. 

(Code  Civ.  Pro.,  §  2485.) 

I,  F.  W.,  surrogate  of  the  county  of ,  do  hereby 

certify,  pursuant  to  article  second  of  title  first  of  chapter 
eighteenth  of  the  Code  of  Civil  Procedure,  that  I  am  pre- 
cluded [or  disqualified],  by  reason  of  [state  reason],  from 
acting  in  the  mntter  of,  etc.,  and  tliat  tliere  is  no  officer 
designated  in  section  2484  of  said  Code  in  whom   my  jmis- 

'  For  duces  tecum  clause,  see  form    poena,  see -form  No.  86ff,  and  sco  notes 
No.  359;  for  affidavit  of  service  of  sub-     to  that  form. 


1206  Forms  Relating  to 

diction  or  powers,  with  respect  to  the  said  matter,  can  vest, 
or  who  is  qualified  to  act  therein,  and  I  do  hereby  accord- 
ingly, pursuant  to  the  provisions  of  the  said  article,  desig- 
nate the  surrogate  of  the  county  of '  to  act  in  my 

place  in  the  said  matter. 

In  witness  whereof,  I  have  hereunto  set  my  hand  [and  the 

seal  of  said  surrogate's  court],'  at ,  in  the  county  of 

,  on  this day  of ,  18 — .' 

[L.  s.]  F.  W.,  Surrogate. 


No.  1343. 

Petition  for  Order  of  Justice  of  the  Supreme  Court  upon  Dis- 
qualification, etc.,  of  Surrogate. 

(Code  Civ.  Pro.,  §  2488.) 

To  Hon. ,  a  Justice  of  the  Supreme  Court  in  the 

District : 

The  petition  of  A  M.  respectfully  shows,  that  he  is  the 
attorney-general  of  the  State  of  New  York,  and  has  been 
directed  by  the  governor  of  said  State  to  make  this  appli- 
cation [or  that  he  is  the  district  attorney  of  the  county  of 

;  or  that  he  is  {or  is  about  to  become)  a  party  to  a 

special  proceeding  (now  pending)  in  the  surrogate's  court 

of  the  county  of ,  to  wit  (stating  proceeding,  and 

showing  how  he  has  become,  or  is  about  to  become,  such 
party).] 

And  your  petitioner  further  shows,  that  the  office  of  the 

surrogate  of  the  county  of is  vacant  by  reason  of 

[state  how  vacancy  has  occurred]  [or  that  F.  P.,  the  surro- 
gate of  the  county  of ,  is  disqualified  {or  precluded 

from  acting)  in  the  above  mentioned  special  proceeding  by 
reason  of  (state  reason),  or  state  otherwise,  according  to  the 
fact,  so  as  to  bring  the  case  within  subdivision  two  of  section 
2487  of  the  Code  of  Civil  Procedure],  and  that  no  special 

*  The  surrogate  desigTiated  must  be  Petty  (32   Hun,  443),   People   ex   rel. 

the  surrogate  of  an  ailjoining  county,  Kii-k  v.  Weiant  (30  Hun,  475),  Matter 

other    than   New    York.     (Code    Civ.  of  Hancock  (91    N.  Y.,  284  ;  rev'g  S. 

Pro.,  §  2485,  am'd    by  Laws   of   1893,  C  .  27  Hun,  78).  Matter   of  Chauncey 

ch.  68(3,  by  twice  striking  out  the  words  (32    Hun,    429).    Matter   of  Tyler  (60 

**  or  Kings"  following  *' New  York."  Hun,    566),     Peojile   ex   rel.    Lent   v. 

'No  seal  appears  to  be  required.  Carr  (100  N.  Y.,  236). 

'See  The  People  ex   rel.  Oakley  v. 


Surrogates'  Courts.  1:207 

provision  is  made  by  law  for  the  discharge  of  the  duties  of 
the  office  of  said  surrogate  iu  that  contingency. 

Tliat  C.  P.,  of ,  the  [special  surrogate,  etc.],  is 

authorized  in  such  case  to  discharge  the  duties  of  the  sur- 
rogate of  said  county,  until  the  said  vacancy  is  hlled  [or 
until  the  said  disability  ceases]. 

Your  petitioner,  therefore,  prays,  that  this  court  will 
grant  an  order,  pursuant  to  the  i^rovisions  of  section  2488  of 
the  Code  of  Civil  Procedure,  establishing  the  fact  that  the 
said  surrogate  is  so  disqualified  \_or  precluded  from  acting, 
etc. ;  or  otherwise,  according  to  the  fact],  and  the  authority 
of  the  said  [special  surrogate]  to  act  [in  the  place  of  said 

F.  P.],  as  surrogate  of county,  and  to  discharge 

the  duties  of  said  surrogate  until  the  said  vacancj"  is  filled 
[or  until  such  disability  ceases]  [or  in  said  special  proceed- 
ing], and  for  such  other  or  further  relief  as  may  be  proper.* 

Dated ,  18—. 

A.  M. 

[Verification  as  in  form  No.  52.] 


No.  1344. 

Order  of  Justice  of  Supreme  Court  upon  Petition  (Form  No.  1313). 

(Code  Civ.  Pro.,  ^S^  2487,  2488.) 

[Title  of  proceeding.] 

On  reading  and  filing  the  petition  of  A.  M.  [attorney- 
general,  etc.],  dated ,  18 — ,  by  which  it  appears  that 

[reciting  substance  of  the  petition]  [and  due  notice  of  this 
motion  having  been  given  to  (naming  parties  notified)]  :" 

I  do  hereby  order,  on  motion  of  ,  after  hear- 
ing, etc.  [or  no  one  appearing  to  oppose],  that  G.  II.,  the 
special  surrogate  of county  [or  name  other  officer 

*  See  the  cases  cited  in  note  3  lo  foi-m  it   thinka  proper.     (Code    Civ.    Pi-o., 

No.  1342,  and  Bee  note  2  to  next  form.  §  2488,  as  uinended  liy  Laws  of  1SS9, 

The    proof  of    authority   fiom    the  ch.  40.').)     By    aniendnuMit   to   pe(;ti(in 

General  T(irm,  now  justice  of  the  su-  2487  of  Codo  of  Civil  Procetlure  hy  ch. 

preme  court,  etc.,  required  under  sec-  (J84  of  Laws  of   1887,  a  justice  of  tlio 

tion    2484,  ia   only    needetl,  when    the  iSujirernc  Court  of  the  judicial  di.slri<t 

office  of  aurrof^-ate    is  vacant,  or  the  emltracinf,' the  county  was  suli.stituted 

surrogate   is   <li.«abied    by    rca.son   of  for  the  General  Term  in  grant iiif,' an. 

•' 8ickne.s.s  absence  or  lunacy."    (Peo-  thority  to  nniko  the  order.     See,  alfio, 

]ile  ex  rel.   Oakley  v.  Petty.  32    Hun,  amendments  to  tliat  section   by  LawH 

44:',.  445.      Per  Parnai-d,  P.  J.)  of  1893,  ch.   G8t3,  and    by    ch.    94(3    of 

'■'The  order  may  l>e  ma<le  upon   or  Laws  of   1895,    taking   ellect   Jan.   1, 

■without  notice,  as  thi;  justice  granting  189G. 


1208  Forms  Relating  to 

or  court],  be  and  he  [or  it]  is  hereby  designated  and  empow- 
ered to  discharge  the  duties  of  the  office  of  the  surrogate 

of count}^  in  the  said  special  proceeding  [or  until 

the  said  vacancy  therein  is  lilled  (or  until  the  said  disability 
ceases)]. 

[And  it  is  further  ordered,  that  the  said  I.  J.  give  security 
for  the  due  discharge  of  his  duties  as  such  officer  by  (name 
security  to  be  given).'] 


TITLE  II. 
Article  First. 

FORMS  RELATING  TO  PROCESS,  AND  SERVICE  THEREOF;  AP- 
PEARANCE AND  JOINDER  OF  ISSUE,  AND  MISCELLANEOUS 
REGULATIONS  OF  PRACTICE. 

(Code  Civ.  Pro.,  Cli.  18,  Tit.  2,  Art.  1.) 

No.  1345.     General  form  of  citation  issued  by  surrogate. 

1346.  Affidavit  of  personal  service  of  citation. 

1347.  Affidavit  to  procure  order  for  ser\ice  of  citation  upon  a  resident  of 

the  State  by  publication. 

1348.  Order  directing  service  of  citation  on  resident  of  the  State  ])y  pub- 

lication. 

1349.  Order  for  service  by  publication  in  cases  provided  for  by  sections 

2522,  25-23  of  the  Code  of  Civil  Procedure. 

1350.  Affidavits  of  ser\ace  of  citation  without  the  State,  and  of  publica- 

tion and  deposit  in  the  post-office. 

1351.  Affidavit  of  service  of  citation  upon  infant  under  fourteen,  lunatic, 

etc.,  or  upon  a  corporation. 

1352.  Order  for  additional  service  in  case  of  infant,  etc. 

1353.  Notice  of  appearance  in  surrogate's  court. 

1354.  Order  appointing  special  guardian  of  infant  cr  lunatic,  etc. 

1355.  ConseHt  of  special  guardian  to  his  appointment. 

1356.  Notice  of  application   for   appointment  of  special  guardian  for 

infant,  etc. 

1357.  Proof  of  service  of  citation,  subpccna,  etc. 

1358.  Verification  of  -m-itten  pleading,  etc.,  in  surrogate's  court. 


'The  justice  may,  in  his  discretion,  See,  also,  notes  to   form    No.  1343, 

require  the  officer  to  give  security  for  and  see  section  2489  of  Code  Civ.  Pro., 

the  due  discharge  of  the  duties  therein,  as  to  how  the  order  may  be  revoked, 

(Code   Civ.  Pro.,  §  2488,  as   amended  and   how  the   appointment   is   super- 

by  ch.  495  of  Laws  of  1889.)     See  note  seded,  etc. 
2  to  this  form  ;  p.  1207  ante. 


Surrogates'  Courts.  1209 

No.  1345. 
General  Form  of  Citation  Issued  by  Surrogate. 

(Code  Civ.  Pro.,  §  2519.) 

The  People  of  the  State  of  New  York,  to  A.  B.  mid  C.  D.: ' 

You,  and  each  of  you,  are  hereby  cited  and  required,  per- 
sonally, to  be  and  appear  before  our  surrogate  [or  before 

the  surrogate's  court]    of  the  county  of ,  at,  etc., 

on,  etc.,  at o'clock  in  the noon  of  that  day, 

then  and  there  to  [state  purpose  of  citation]. 

[And  if  any  of  the  persons  interested  be  under  the  age 
of  twenty- one  years,  they  are  required  to  appear  by  their 
guardian,  if  they  have  one  ;  or,  if  they  have  none,  to  ap- 
pear and  apply  for  one  to  be  appointed,  or,  in  the  event  of 
their  neglect  or  failure  to  do  so,  a  guardian  will  be  appointed 
by  the  surrogate  to  represent  and  act  for  them  in  the  pro- 
ceeding.'] 

In  testimony  whereof,  we  have  caused  the  seal  of  our  said 
surrogate's  court  to  be  hereunto  affixed. 

Witness,   F.  W.,  Esq.,  surrogate  of  our  said  county,  at 

the of ,   in  the  county  of ,  the 

day  of ,  in  the  year  of  our  Lord  18 — .' 

[L.  s.]  F.  W.,  Surrogate* 

[or  A.  F.,  Clerk  to  the  Surrogate' s  Court]. 


No.  1346. 
Affidavit  of  Personal  Service  of  Citation. 

(Code  Civ.  Pro..  §  2520.) 

■  County,  ss.: 


A.  B.,  of ,  being  duly  sworn,  says,  that  on  the 

day  of ,  18 — ,  he  served  the  annexed  cita- 

'  See  Code  Civ.  Pro.,  §  2519.  person  other  than   the  clerk   of  the 

*  It  is  customary  to  insert  this  clause  court  who  made  out  th«  citation,  and 
•when  there  api)ear  to  be  infants  in-  withonl  his  aulhority,  ^-ivcs  the  court, 
terested.  See  Code  Civ.  Pro.,  §  25:11;  no  jiu-isdiction  ovi-r  tiif  imrty  win  hc 
al.«o.  Price  v.  Fenn  (3  Dem.,  841  ;  8  luune  is  inserted,  nee  Bocruni  v.  15t'ttH 
Civ.  Pio  ,  206).  (1  I>«'Mi  ,  471).     Sec,    also,    Matter   of 

*  See,  also,  as  to  citations  s-enerally,  Bradli-y  (70  Hun,  104),  Lainlx'it  v. 
sections  2r)15-2520,  Code  Civ.  Pro..  Craft  (!18  N.  V.,  :M2).  Matt.r  of  Alcx- 
and  that  the  insertion  in  a  citation  of  an.h-r  (S:?  linn.  147),  M;ittci-of  Plitd.-u 
the  name  of  a  party  to  be  served  by  a  (51  i<l.,  20S),  Matter  of  IWooks  (Daily 


Surrogates  Courts. 


1209a 


Reg-.,  Augr.  13,  18S6),  Mead  v.  Miller 
(3  Dem.,  577),  Matter  of  Sonle  (46  Hun, 
661),  Hoyt  V.  Hoyt  (112  N.  Y.,  493), 
In  re  Stephen's  Estate  (3  N.  Y.  Supp., 
36),  Matter  of  Duston  (Daily  Reg-., 
Jan.  3,  18S4),  Matter  of  Leinkauf  (4 
Dem.,  17),  Farmers'  Loan  and  Trust 
Co.  V.  McKenna  (3  id.,  219),  Matter  of 
Seabra  (38  Hun,  218),  Matter  of  Wash- 
burn (12  Misc.,  242),  Price  v.  Fenn  (3 
Dem.,  341),  Matter  of  Cortwripht  (3 
id.,  13),  Matter  of  Moore  (18  Week. 
Dig.,  42). 

*  As  to  official  designation  in  cases  in 
■which  the  county  judge  is  also  surro- 


gate, and  in  case  of  special  and  acting 
surrogate,  see  section  2483,  Code  Civ. 
Pro.;  as  to  authority  of  clerk,  see  sec- 
tion 2509,  id.  ;  Mauran  v.  Hawley  (2 
Dem.,  396).  By  an  amendment,  by 
Laws  of  1893,  ch.  686.  to  §  2509  of 
Code  Civ.  Pro.,  the  clerk  or  other  per- 
son employed  in  any  capacity  in  a 
surrogate's  office,  shall  not  act  as 
attorney  or  counsel,  or  as  referee,  or 
special  guardian,  in  any  matter  before 
the  surrogate. 

See,  also.  Matter  of  Hurlburt  (43 
Hun,  311),  Matter  of  Atwood  (10  Misc., 
481,  485). 


A.  B. 


1210  Forms  Relatixg  to 

tion  upon  F.  G.,  at  the  [city]  of ,  in  the  county  of 

■ ,  and  State  of  New  York,  by  [*]  delivering  to  said 

F.  G.  a  cox^y  thereof.' 

[Jurat  as  in  form  No.  46.] 

[Or  as  above  to  (*),  and  from  thence  as  follows :  By  leav- 
ing a  copy  thereof  at  the  residence  of  said  F.  G.  (or  the 
place  where  said  F.  G.  was  sojourning)  at  the  time  of  said 

service,  to  wit  (No. street),  in  the  (city)  of 

,  in  the  county  of ,  and  State  of  New  Yoik, 

with  a  person  of  suitable  age  and  discretion,  to  wit :  of  the 

age  of  at  least years,  who  stated  that  said  F.  G. 

was  not  at  home  {or  was  ill,  and  could  not  see  this  depo- 
nent), but  that  he  would  hand  the  said  copy  to  him  imme- 
diately {or  on  his  return)  {or  state  other  circumstances  of 
service,  to  give  the  surrogate  good  reason  to  believe  that 
the  copy  came  to  the  knowledge  of  the  person  served  in 
time  for  him  to  attend  at  the  return  day).] 

A.  B. 

[Jurat  as  in  form  No.  46.  ] 


No.  1347. 

Affidavit  to  Procure  Order  for  Service  of  Citation  upon  a 
Resident  of  the  State  by  Publication. 

(Code  Civ.  Pro.,  §2521.) 

[Title  of  proceeding.] 

County,  ss.: 

A.  B.,  of ,  being  duly  sworn,  says,  that  he  is 

[description  of  affiant  may  be  here  inserted]. 

That  on  the day  of ,  18—,  he  made  the 

following  efforts  to  serve  the  annexed  citation,  which  had 

been  delivered  to  him  by for  the  purpose  of  such 

service,  upon  I.  J.,  one  of  the  persons  to  whom  it  is  directed, 
who  then  resided  [and  now  resides]  at ,  in  the  county 

'  See  Boenim  v.  Betts  (1  Dem..  471).  489),  Potter  v.  Ogden  (136  N.  Y.,  384), 

Matter   of  Caihart    (2   Dem.,  627  ;  67  Matter  of  Washburn  (12  Misc.,  242), 

How.  Pr..  216).  Matter  of  Gregory  (13  O'Connor  v.  Huggins  (113  N.  Y.,  .511), 

Misc.,  363).  Matter  of  Merritt  (5  Detn.,  Matter  of  Carhart  (2 Dem.,  627).    Any 

544),  Matter  of  Wasiiburn  (12  Misc.,  person  may  serve  the  citation  although. 

212),    Matter   of  Lawrence   (26   State  a  party  to  the  special  proceeding  (Code 

Rep.,  238).  Matter  of  Bonnett  (1  Con-  Civ.  Pro.,  §  2520). 
noUy,  294),  Matter  of  Porter  (1  Misc., 


Surrogates'  Courts.  1211 

of ,  in  this  State,  in  the  manner  prescribed  by  sec- 
tion 2520  of  the  Code  of  Civil  Procedure,  to  wit  [here  state 
the  efforts  made]. 

And  deponent  further  says,  that  the  said  I.  J.  cannot  be 
found  \or  that  the  said  I.  J.  evades  such  service,  so  that  it 
cannot  be  made  upon  him]. 

A.  B. 

[Jurat  as  in  form  Xo.  46.] 


No.  1348. 

Order  Directing  Service  of  Citatiou  ou  Resident  of  this 
State  l)y  Publication. 

(Code  Civ.  Pro.,  §2521.) 

[Title  of  proceeding.] 

It  having  appeared  to  my  satisfaction  by  the  affidavit  of 

A.  B.,  dated ,  18 — .  that  proper  and  diligent  effort 

has  been  made  to  serve  the  citation,  a  cop}"  of  which  is 
hereto  annexed,  upon  I.  J.  [one  of  the  persons],  to  whom 

it  is  directed,  who  resides  at  the  [city]  of ,  in  the 

county  of ,  in  this  State,  and  that  the  said  F.  Gr. 

cannot  be  found  \or  evades  the  service  of  the  said  citation, 
so  that  it  cannot  be  made  upon  him] : 

Now,  upon  the  application  of ,  I  do  hereby  order 

and  direct,  that  service  of  the  said  citation  upon  said  P.  G. 
be  made  by  leaving  a  copy  thereof,  etc.  [concluding  as  in 
form  No.  91,  making  necessary  changes].' 

Dated ,  18—. 

F.  W.,  Surrogate  of County. 


No.  1349. 


Order  for  Service  by  Publication  in  Cases  Provided  for  by 
Sections  2522,  2523  of  the  Code  of  Civil  Procedure. 

(Code  Civ.  Pro.,  g  2524.) 

[Title  of  proceeding.] 

It  having  appeared  to  my  satisfaction  by  flic  duly  verified 
petition  of  A.  B.,  dated ,  18—  \ot  sfntc  otlirr  Tii.'tliod 

'  See,  also,  section.s  436  and  437,  Code    tions  arc  made  npiilii  nhlc  td  lliis  onirr 
Civ.  Pro.,  the  provisions  of  which  sec-    by  section  2521,  id. 


1212  Forms  Relating  to 

of  proof],  that  the  F.  Gt.  Company,  a  corporation  named  in 
the  citation,  a  copy  of  whicli  is  hereto  annexed,  is  a  foreipi 
corporation  [or  that  G.  H.,  one  of  the  persons  named  in  the 
citation,  a  copy  of  which  is  hereto  annexed,  is  not  a  resi- 
dent of  the  State  ;  or,  being  a  resident  of  the  State,  has  de- 
parted therefrom  with  intent  to  defraud  his  creditors  {or  to 
avoid  the  service  of  process) ;  or  is  a  resident  of  the  State, 
but  is  temporarily  absent  therefrom,  or  state  in  like  manner 
other  circumstances  bringing  the  case  within  the  provisions 
of  sections  2522  or  2528  of  the  Code  of  Civil  Procedure], 
and  that  the  case  is  one  of  those  specified  in  sections  2522 
[or  2523]  of  the  Code  of  Civil  Procedure  : 

I  do  hereby,  upon  the  application  of  said  A.  B.,  order 
and  direct,  the  service  of  the  said  citation  upon  the  said 
F.  G.  Company  [or  upon  said  G.  11.]  by  publication  of  said 
citation  in  two  newspapers  published  in  tlie  county  of 
,  to  wit:  the  [name  of  newspaper],  a  newspaper  pub- 
lished at  the  [city]  of ,  and  the,  etc.  (as  above),  [and 

also  in  the  (name  of  newspaper),  a  newspaper  published 
at ,  in  the  county  of ,^  once  in  each  of  six  suc- 
cessive weeks,  or  at  the  option  of  said  A.  B.  [naming 
petitioner],  by  delivering  a  copy  of  the  said  citation,  with- 
out the  State,  to  the  said  G.  H.  \or  to  an  officer  of  said 
F.  G.  Company,  specified  in  section  431  or  432  of  the 
Code  of  Civil  Procedure],"  in  person  [and  to  the  person 
with  whom  said  G.  H.  is  sojourning.]' 

[*]  And  I  do  hereby  further  order  and  direct,  that  on  or 
before  the  day  of  the  first  publication  of  said  citation,  the 
said  A.  B.  [naming  petitioner]  deposit  in  the  post-oflSce,  at 
■ ,  a  copy  of  the  said  citation  and  of  this  order,  con- 
tained in  a  securely  closed  postpaid  wrappei-,  directed  to  the 

said  G.  H.  [or  to  tlie  said  F.  G.  Company]  at —  [and 

a  further  copy  of  the  said  citation,  likewise  contained  in  a 
securely  closed  postpaid  wrapper,  directed  to  the  person  with 
whom  the  said  G.  H.  is  sojourning].' 

'  See  section  2535,  Code  Civ.  Pro. ,  ^  Insert  this  clause  in  brackets,  if  the 

as  to  publication  of  citation;  and  see  person  to  be  served  is  an  infant  under 

note  1  to  form  No.  650.  and  ch.  262  of  the  age  of  fourteen  years. 

Laws  of  1885,  as  to  publication  in  State  ^  See  the  cases  cited  in  note  1,  p.  68, 

paper.  to  form  No.  94;  also  McCully  v.  Heller 

^  Insert  this  clause  when  the  service  (66  How.  Pr. ,  468),  Piper  v.  Williams 

is  made  upon  a  corporation.  (5  Month.  li.  Bui.,  31),  Phelps  v.  Phelps 


Surrogates'  Courts.  1213 

[Or  as  above  to  (*),  and  from  thence  as  follows :  And  I 
being  satisfied  by  the  said  petition  ^^etc.)  that  the  said  peti- 
tioner cannot,  with  reasonable  diligence,  ascertain  a  place 
where  the  said  G.  H.  would  probably  receive  matter  trans- 
mitted through  the  post-office,  do  hereby  dispense  with  the 
deposit  of  any  papers  therein.] 

Dated  at  the of ,  in  the  county  of , 

and  State  of  New  York,  on  the  day  of , 

18—. 

F.  W.,  Surrogate  of County. 


No.  1350. 

Affidavits  of  Service  of  Citation  witliout  the  State,  and  of 
Publication  and  Deposit  in  the  Post-office. 

(Code  Civ.  Pro.,  §  2525.) 

Substantially  as  in  forms  Nos.  97,  98,  99.' 


No.  1351. 

Affidavit  of  Service  of  Citation  upon  Infant  under  Four- 
teen, Lunatic,  etc.,  or  upon  a  Corporation 

(Code  Civ.  Pro.,  §  2526.) 

Same,  substantially,  as  forms  Nos.  74  to  79. 


No.  1352. 
Order  for  Additional  Service  in  Case  of  Infant,  etc. 

(Code  Civ.  Pro.,  §  2527.) 

Substantially  the  same  as  forms  Nos.  80  and  81,  making 
the  necessary  changes.'^ 

(6  Civ.  Pro.  R.  [Browne],  117),  Matter  Trust  Co.  (101  N.  Y.,  487,  rov'g-  S.  C, 

of  Macaulay  (94  N.  Y.,  574),  Saw  Mill  32  Hun,  35),  Lockwood  v.  Biantly  (31 

Co.  v.  Dock  (3  Dem.,  55;  7  Civ.  Pro.,  Ilun,    155),   Gr  enhaum   v.   Dwyer  (4 

237),  Matter  of  Merritt  (5  Dein.,  544),  Civ.    Pro.    [Bwwn<"],   270;    S.    C,    G6 

In  ri  Koch    (19    Civ.    Pro.    li.,    105),  How.    Pr.,"  200),    Katel    v.    Rutcl    (17 

Matter  of  Washburn   (12  Misc.,   242),  We«'k.  l)i{,'.,  130).  Dont-lly  v.  Wo.st.  (66 

generally  ne  to  order.  How.  Pr.,  42S),  Pi.ser  v.  Lockwood '(30 

The  afKilavits  or  petition,  upon  this  Hun,  6). 

application,  will    be  similar  to  forms  '  In  the  caH<i  of  a  ci!atliiii  1<>  a  non- 

No3.  93  and  93.    See  as  to  such  aflida-  rc-idi^nt  cxtMrMfor,  nix  weeks  did  not 

vita,   note  2  to  form   No.  92,  and  see  intervene  l»elween  the  day  (if  its  issue 

Argall  V.  Bacbrach  (18  Week.    Dig'.,  ami  the  time  ut  which  it  wa.'i  relui-na- 

267j,  Kennedy  v.  N.  Y.  Life  Ins.  and  bie,  an  order  waa  made  for  iln  service 


1214  Forms  RELATmOr  to 

No.  1353. 
Notice  of  Appearance  in  Surrogate's  Court. 

(Code  Civ.  Pro.,  §  2528.) 

[Title  of  proceeding.  ] 

Sir — Take  notice,  tliat  I  [have  been  retained  by  and] 
appear  [for  A.  B.]  in  tlie  above  entitled  proceeding,  and 
demand  that  all  notices  and  papers  therein  be  served  upon 

me  at  [my  office]  No. street,  in  the  city  of , 

N.  Y.  [or  at  my  office  in  the  village  {or  town)  of ,  in 

the  county  of ,  N.  Y.J.* 

Dated ,  18—. 

Yours,  etc., 
A.  B.  [or  C.  D.,  Attorney  for  A.  B.] 

No. street, ,  N.  T. 

To  M.  F.,  Attorney  for ,  and  to  P.  P.,  Surrogate 

of County. 

No.  1354. 

Order  Appointing  Special  Guardian  of  Infant  or  Lunatic, 

etc. 

(Code  Civ.  Pro.,  §2530.) 

[Title  of  proceeding.  ] 

C.  D.,  an  infant  [or  lunatic,  etc],  [*]  not  having  appeared 
in  the  above  entitled  proceeding  by  his  general  guardian  [or 
by  his  committee] :   [f] 

It  is  hereby  ordered,  upon  the  application  of , 

due  notice  of  said  application  having  been  personally  served 
upon  said  C.  D.  [and  also  upon  G.  H.,  the  committee  of  said 
C.  D.],'  that  F.  M.,  of ,  whose  written  consent  to  be 

by  publication,  or  personally,  without  [Browne],    117),    Ratel    v.   Ratel    (17 

the  State,  and  service  was  made  per-  "Week.    Dig.,    136),  Matter  of  Halsey 

gonally  upon  the  executor  out  of  the  (13  Abb.   N.   C,  353;  2  Dem..   577), 

State,  more  than  thirty  days  before  Code  Civ.  Pro.,  §  2529,   Peters  v.  Carr 

th3  return  day— /?eZ(i,  that  the  servive  (2  Dem.,  22),  Grossman  v.  Crossman 

was  suflicieiit.     (Matter  of  Macaulay,  (id.,  69),  Merritt  v.  Jackson  (id.,  214), 

94  N.  Y.,  574.)  Matter   of  Hamilton   (69   Hun,   200), 

*  See  Matter   of  Cortright  (3  Dem.,  Laws  of  1896,  chap.  [,70 ;  amending 

13),  In   re   Stephen's  Estate  (2  N.  Y.  section  2528,  Code  Civ.  Pro.,  taking 

Supp.,  36).  effect   September   1,    1896 ;    Laws    of 

'See  Weller   v.    Suggett   (3   Redf.,  1893,    chap.    686,    amending    section 

249),  Matter   of  Macaulay    (27    Hun,  2509,    Code   Civ.    Pro.;    Chatfield    v. 

577 ;     afTd    S.    C,    94    N.    Y.,   574),  Hewlett  (2  Dem.,  191).  and  see  cases 

Krause   v.    Averill    (4    Civ.    Pro.    R.  cited  in  notes  to  form  No.  59. 
[Browne],  410;  S.    C,   66  How.   Pr.,        "See,  as  to  notice,  section   2531   of 

97),  Phelps  v.  Phelps  (6  Civ.  Pro.  R.  Code  Civ.  Pro. 


SUKKOGATES'    CuUKTS.  1215 

the  special  guardian  of  said  C.  D.,  in  said  proceeding,  has 
been  duly  filed,  be  and  he  is  hereby  appointed  special  guard- 
ian of  said  C.  D.,  to  appear  for  him  in  this  proceeding. 

Dated  at ,  in  the  county  of ,  on  the 

day  of ,  18 — . 

F.  W.,  Surrogate. 

[Or  as  above  to  C^),  and  from  thence  as  follows :  Having 
appeared  herein  by  M.  N.,  his  general  guardian  {or  com- 
mittee), and  I  having  inquired  into  the  facts,  and  there 
being  ground  to  suppose  that  the  interest  of  said  M,  N.  is 
adverse  to  that  of  spid  infant  {or  lunatic,  etc.)  {or  that  the 
interests  of  said  C.  1).  require  the  appointment  of  a  special 
guardian  for  him  herein).] 

[Conclude  as  in  above  form  from  (f).^] 


No.  1355. 
Consent  of  Special  Guardian  to  His  Appointment. 

(Code  Civ.  Pro.,  ^  2530.) 

[Title  of  proceeding.] 

I,  F.  M,,  of ,  do  hereby  consent  to  be  appointed 

the  special  guardian  of  C.  D.,  an  infant  [or  lunatic,  etc.],  in 
the  above  entitled  proceeding  [I  having  no  interest  therein 
adverse  to  said  C.  D.].'' 

Dated ,  18—. 

F.  M. 

[Acknowledgment  as  in  form  Xo.  340.] 


No.  1356. 

Notice  of  Application  for  Ai)iM)iiitment  of  Special  Guardian 
for  Infant,  etc. 

(Code  Civ.  Pro.,  ^2531.) 

[Title  of  proceeding.] 

Sir — Take  notice,  that  an  application  will  be  made  to  the 

»  See  Story  v.  Dayton  (22  Hun,  450),  Ion  (66  Hun,  199),  Potter  v.  Ogdeii 
Pinckney  v.  Smith  (26  Hun,  524),  In  136  N.  Y.,  HS4).  Laws  of  189:!,  ch.  686, 
Matter  of  Luiliow  (5  Redf.,  301),  Gun-  lund'fr  §  2509  Code  Civ.  Pro. 
niiig-  V.  Lockujan  (3  Redf.,  27;i),  Mat-  '  Rult;  10  of  th«  HurroKatt^H  court  of 
ter  of  WatHon  (2  Dem.,  642),  Matter  of  Now  York  county,  re<juii-.'H  IhisHtale- 
Leinkauf  (4  Dem.,  1),  Fanners'  Loan  merit  to  bo  nuule,  and  it  Ht'i-ni.s  to  ho 
and  TruHt  Co.  v.  McKenna  (3  id.,  219),  j. roper  in  every  cuho,  allh(>uj,di  not  re- 
Matter  of  Seabra  (38  Hun,  218),  Tildeii  (luired  by  the  hIuIuIo.  S.m- uIho  ndeH 
V.  Dow8  (2  Dem.,  489),  Matter  of  Don-  11  and    12  of  N.  Y.  Surrojfate'n  Court. 


1216  FuilMS    llELATliNC.    'iU 

surrogate  of county,  at,  etc.,  on,  etc.,  for  the  appoint- 
ment of  a  special  guardian,  to  appear  for  [you]  in  the  above 
entitled  proceeding. 

Dated ,  18—. 

Yours,  etc., 

A.  B.,  Petitioner  [or  Attorney  for  Petitioner]. 
[Office  address.'] 
To  C.  D.,  etc.  

No.  1357. 
Proof  of  Service  of  Citation  or  Subpoena,  etc. 

(Code  Civ.  Pro.,  i^  2582.) 

See  forms  contained  in  chapter  iifth,  page  38,  ante,  for 
proof  of  service  of  summons  issued  out  of  the  Supreme 
Court.' 


No.  1358. 

Yeriiication    of  Written    Pleading,  etc.,  in   Surrogate's 

Court. 

(Code  Civ.  Pro.,  §2534.) 

See  forms  Nos.  151,  etc.,  and  form  No.  52,  for  veriiication 
of  petition.*  

Aeticle  Second. 

FORMS   RELATING  TO   HEARING,  INCLUDING  TRIAL  BY  JURY 
AND  REFERENCE. 

(Code  Civ.  Pro.,  Ch.  18,  Tit.  2,  Art.  2.) 

No.  1359.     Petition  to  surrogate  to  take  examination  of  an  aged,  .sick  or  infirnr 
witness. 


*  See  note  2  to  form  No.  122,  Matter  tents  thereof,  and  that  the  same  are 

of  Monell  (46  State  Rep.,  693).  true  "—Held,  to  be  a  substantial  com- 

'  In  every  other  ca-^e  than  of  service  pliance  with  the  requirements  of  sec- 
of  a  citation  or  suhpoeiia,  proof  of  ser-  tions  526  and  2534  of  the  Code  of  Civ. 
vice  must  be  made  by  affidavit;  or.  Pro.  Such  a  statement  is  equivalent 
where  the  person  served  is  of  full  age,  to  saying  that  the  allegations  are  ti  ue 
and  not  incompetent,  by  a  written  ad-  to  the  knowledge  of  deponent.  (Mat- 
mission  signed  by  him,  accompanied  ter  of  Macaulay,  94  N.  Y.,  574.) 
with  proof,  by  atfidavit  or  otherwise.  See,  also,  Moorhouse  v.  Hutchinson 
of  the  genuineness  of  the  signature.  (2  Dera,  429),  Crosier  v.  Cornell  Steam- 
(Code  Civ.  Pro.,  §  2rj32.)  For  form  of  boat  Co.  (27  Hun,  215;  aff'd.  without 
admissionof  service  and  proof  thereof,  opinion,  92  N.  Y.,  626),  Thomjison  v. 
see  form  No.  89.  Mott  (2  Deni.,  154),  Matter  of  Wisner 

^  A  verification  to  a  petition,  stating  (3  id.,  11). 
Ihat  the   petitioner  "knows  the   con- 


Surrogates'  Courts.  1217 

No.   1360.     Order  for  examinatiou  of  a  witness  in  another  county. 

1361.  Order  appointing  referee  to  take  testimony  of  sick,  etc.,  witness. 

1362.  Return  of  surrogate  of  another  county  of  examination  of  witness 

before  him. 

1363.  Decision  of  surrogate  upon  a  trial  by  him  of  au  issue  of  fact. 

1364.  Notice  of  exceptions  to  surrogate's  decision. 

1365.  Order  appointing  referee  on  accounting. 

1366.  Referee's  report  on  accounting. 

1367.  Order  of  surrogate  for  trial  by  jury. 


No.  1359. 

Petition  to  Surrogate  to  take  Examination  of  an  Aged, 
Sick  or  Iniirm  Witness. 

(Code  Civ.  Pro.,  §§  2539,  2540.) 

[Title  of  proceeding.] 
To  the  Surrogate  of County : 

The  petition  of  A.  B.  resjjectfully  shows,  that  he  is  a 
party  to  the  above  entitled  special  proceeding  which  has 
been  instituted  in  the  surrogate's  court  of  said  county  [or 

of  the  county  of ],  to  procure  the  probate  {or  the 

revocation  of  the  probate]    of  the  will   of  C.  D.,  late  of 

,  in  the  [said]  county  of  ■ \or  state  other 

purpose  of  proceeding]. 

That  the  testimony  of  I.  J.  who  [resides  and]  is  at , 

in  said  county  [or  in  the  county  of ],  is  material 

and  necessary  to  your  petitioner  in  said  proceeding  [said 
I.  J.  being  a  subscribing  witness  to  said  will]/  as  he  is  ad- 
vised by  M.  N.,  his  counsel  herein,  who  resides  at,  etc.,  to 
whom  he  has  fully  stated  what  he  expects  to  prove  by  said 
witness,  and  verily  believes. 

That  the  said  I.  J.  is  so  aged,  being  of  the  age  of 

years  \or  is  so  sick,  or  is  so  infirm],  as  to  be  unable  to  attend 
before  you  to  be  examined  [within  a  reasonable  time,  to 
which  the  hearing  of  the  said  proceeding  may  be  adjourn(>d, 
to  wit :  within days]." 

'  lasert  this  clause  where  the  facts  ap|)li(iili()n  is  made.     (Code  Civ.  Pro., 

authori/.e  it.     Tt  i-.  ncccssMry  to  be  in-  8  2540.) 

sorted    where    the    allciidanco    of    tlie  '  Tiiscit  this  clause  in  lirackfts,  wluro 

witness  is  required  in  another  county  tlic  w  ilii(>;s  is  in  anotlicr  rduiity  llian 

than  that  of  tlic  surrogate  to  whom  tiic  thai  of  tlic  surro^ratc  to  wIkpim  tin-  np- 
153 


1218  Forms  Relating  to 

That  [here  state  more  particular!}^  the  circumstances 
whicli  render  it  impossible  for  the  Avitness  to  attend]. 

\V4ierefore  your  petitioner  prays  that  you  will  proceed 
to  the  place  where  the  said  witness  is,  and  there,  as  in  open 
court,  take  his  examination  [or  that  j^ou  will  make  an 
order  directing  that  the  said  witness  be  examined  before 

F.  P.,  the  surrogate  of county],'  and  for  sucli  other 

or  further  order  or  relief  as  may  be  proper,  and  according 
to  law." 

Dated  — ,  18—. 

A.  B. 

[Verification  as  in  form  No.  52.] 


No.  1360. 
Order  for  £xaminatiou  of  a  Witness  in  Another  County. 

(Code  Civ.  Pro.,  §2540.) 

[Title  of  proceeding.] 

Upon  the  application  of  A.  B.,  a  party  to  the  above  enti- 
tled proceeding,  which  has  been  instituted  [*]  to  procure 
the  probate  \or  the  revocation  of  the  j^robate]  of  the  will 
of  C.  D.,  late  of ,  in  the  county  of ,  de- 
ceased, and  upon  proof  by  affidavit  [to  wit :  by  the  verified 
petition]  of  said  A,  B.,  dated ,  18 — ,  to  my  satis- 
faction, that  the  testimony  of  1.  J.,  who  [resides  and]  is  at 
,  in  the  county  of ,  is  material  and  neces- 
sary to  said  A.  B.,  he  being  a  subscribing  witness  to  said 
will,  and  that  said  I.  J.  is  so  aged  [or  sick,  or  infirm]  as  to 
be  unable  to  attend  before  me  to  be  examined,  and  I  having 
good  reason  to  believe  that  said  CD.  cannot  attend  before 
me  within  a  reasonable  time,  to  which  the  hearing  of  said 
proceeding  can  be  adjourned  : 

I  do  hereby  order  and  direct,  that  the  said  witness,  I.  J., 
be  examined  before  Hon.  T.  P.,  the  surrogate  of  the  said 

county  of  — ,  on  the •  day  of ,  18—, 

at  [state  place],  at o'clock  in  the noon. 

plication  is  made.     (Code  Civ.  Pro.,  fied  petition  is  an  affidavit.    (Code  Civ. 

§  2540.)  Pro..  §  3343,  subd.  11.) 

•  See  note  2  to  form  No.  1359.  See,    also,   Matter   of  Gee  (24  Civ. 

^  The  proof  may  also   be  made  by  Pro.  R.,  241). 
the  affidavit  of  the  applicant.     A  veri- 


Surrogates'  Courts.  1219 

And  I  do  hereby  further  order  and  direct,  that  a  certified 

copy  of  this  order  be  delivered  to  said  surrogate  of 

county,  on  or  before  the day  of ,  18 ,  and 

that days'  notice,  in  writing,  of  such  examination, 

be  given  to  [naming  the  persons]  personally  [or  state  other 
manner  of  service]. 

Dated  at ,  in  the  county  of ,  on  the 

day  of ,  18 — . 

F.  W.,  Surrogate  of County, 


No.  1361. 

Order  Appointing  Referee  to  take  Testimony  of  Sick,  etc.. 

Witness. 

(Code  Civ.  Pro.,  g§  2539,  2540.) 

As  in  last  form,  No.  1360,  to  [*],  and  from  thence  as  fol- 
lows :  To  [state  object  of  proceeding],  and  upon  proof  by 
affidavit  [to  wit :  by  the  verified  petition]  of  said  A.  B., 

dated ,  18—,  to  my  satisfaction,  that  the  testimony 

of  I.  J.  who  [resides  and]  is  at ,  in  the  county  of 

,  is  material  and  necessary  to  said  A.  B.,  and  that 

said  I.  J.  is  so  aged  [or  sick,  or  infirm],  as  to  be  unable  to 
attend  before  me  to  be  examined  : 

I  do  hereby  order  and  direct,  that  the  said  witness,  I.  J., 
be  examined  before  M.  P.,  of ,  who  is  hereby  ap- 
pointed a  referee  to  take  the  testimony  of  said  I.  J.,  and 
to  report  the  same  to  me. 

Dated,  etc.  [as  in  last  form]. 

[Signature  as  in  last  form.] 


No.  1362. 

Return  of  Surrogate  of  Another  County  of  Examination  of 
Witness  Before  Him. 

(Code  Civ.  Pro.,  §  2540.) 

[Title  of  proceeding.  ] 

Examination  of  T.  J.,  a  witness,  taken  before  T.  P.,  sur- 
rogate of county,  in  tlie  above  entitled  proceeding, 

at ,  in  the  county  of ,  on  the duy  of 


1220  FoKMS  Relating  to 

,  18 — ,  at o'clock  in  tlie noon  [to 


which  time  and  pkice  the  said  examination  was  adjourned 
by  said  surrogate],  pursuant  to  article  second  of  title  second 
of  chapter  eighteenth  of  the  Code  of  Civil  Procedure. 

Present,  F.  G.,  for ;  G.  H.,  for . 

I.  J.,  being  first  duly  sworn  by  said  surrogate,  testified 
as  follows,  being  examined  by  F.  G.,  for [here  in- 
sert direct  testimony  of  witness]. 

And  on  his  cross-examination  by  G.  H.,  for ,  said 

I.  J.  further  testified  as  follows  [here  insert  cross-examina- 
tion of  witness]. 

[Signature  of  witness.] 

I,  T.  P.,  surrogate  of county,  do  hereby  certify 

that  the  foregoing  examination  was  taken  before  me  in  the 
above  entitled  proceeding,  at  the  time  and  place  aforesaid, 
pursuant  to  the  order,  of  which  a  certified  copy  is  hereto 
annexed,  and  was  then  and  there  reduced  to  writing,  and 
subscribed  by  said  I.  J.  [or  state  other  manner  of  authenti- 
cation] in  my  presence. 

In  witness  whereof,  I  have  hereunto  set  my  hand  and  the 

seal  of  the  surrogate's  court  of countj^  on  this 

— day  of ,  18 — ,  at ,  in  the  said  county 

of . 


[L.  s.]  T.  p.,  Surrogate. 


No.  1363. 

Decision  of  Surrogate  upon  a  Trial  by  Him  of  an  issue  of 

Fact. 

(Code  Civ.  Pro.,  §  2545.) 

Substantially   as   in   form    No.    431,    making   necessary 
changes. ' 

*  An  appeal  from  a  surrog-ate's   de-  Dem.,    50),    Matter   of    Kaufman   (39 

cree  cannot  1)6  heard,  when  the  case  State  Rep.,  236),  Matter  of  O'Brien  (5 

contains  no  decision  of  the  surrogate  Misc.,  136),  Matter  of  Hesdra  (4  Misc., 

pursuant  to  section  2545  of  the  Code  37),  Matter  of  Hamilton  (76  Hun,  200), 

of  Civil  Procedure.    (Waldo  v.  "Waldo,  People   ex   rel.  Morgan  v.  Rollins  (33 

19  W.  Dig.,  100  ;  S.  C,  32  Hun,  251.)  Hun,  47).    And  see  cases  cited  in  note 

See,  also.  Matter   of  Chauncey  (19  1  to  form  No.  1365. 

Week.  Dig.,  457  ;  S.  C,  32  Hun,  429),  As  to  reversal  of  surrogate's  decree 

]\Iatter   of  Winslow    (12    Misc.,   2.54),  under  section  2545  of  Code  Civ.  Pro., 

Mills    V.    Hoffman   (92    N.    Y.,   181),  see  In  the  Matter,  etc.,  of  Ross  (87  N. 

Dickel  V.  Yates  (2  Dem.,  229),  Matter  Y.,  514),  Snyder   v.   Sherman  (88   N. 

of  Dodge  (40   Hun,  443  ;    105   N.  Y.,  Y.,  656),  Matter  of  will  of  Smith  (95  N. 

585),  Matter  of  Hoyt  (5   Dem.,  284),  Y.,  516  ;    S.  C.  19  Week.    Dig.,  220), 

Tilby  V.  Tilby  (3  id.,  258),  Matter  of  Loder  v.  Whelpley  (111  N.  Y.,  239). 

Keef  (43   Hun,  98),  Hood  v.  Hood   (5  Burger  v.  Burger  (id.,  523),  Matter  of 


SUEEOGATES^    COUETS.  1221 

No.  1364. 
Notice  of  Exceptions  to  Surrogate's  Decision. 

(Code  Civ.  Pro.,  §  2545.) 

As  in  form  No.  418,   substantially,   making  necessary 
changes.     (See,  also,  note  1  to  that  form.) 


No.  1365. 
Order  Appointing  Referee  on  Accounting. 

(Code  Civ.  Pro.,  §  2546.) 

[Title  of  proceeding.] 

J.  H.  and  C.  F.,  the  executors  of  the  last  will  and  testa- 
ment of  J.  H.,  late  of  the  [city]  of ,  deceased,  having 

presented  an  account  of  their  proceedings  as  such  executors 
[and  as  testamentary  trustees  under  said  will]  for  linal  set- 
tlement, and  sundry  persons  interested  in  the  said  estate 
having  filed  objections  to  the  said  account : 

It  is  ordered,  that  the  said  account,  objections  and  claims 

be  referred  to  J.  F.,  Esq.,  of ,  counselor  at  law,  to 

examine  the  same,  and  to  take  and  rei:»ort  the  evidence 
upon  the  facts  in  the  said  proceeding,  and  to  examine  the 
said  accounts,  and  to  hear  and  determine  all  questions  aris- 
ing upon  the  settlement  of  the  said  account  which  the  surro- 
gate has  power  to  determine,  and  to  make  a  report  thereon, 
subject,  however,  to  confirmation  by  the  surrogate. 

And  it  is  further  ordered,  that  the  first  hearing  of  this 
matter  before  the  said  referee  take  place  at  the  oflBce  of  said 

referee.  No. street,  in  the  [city]  of  , 

N.  Y.,  on  the  day  of  ,  18 — ,  at  

o'clock  in  the noon  of  that  day,  and  that  the  said 

referee  bring  in  his  report  herein  before  the  surrogate,  on 

the day  of ,  18—,  at o'clock  in  the 

noon,  which  last  mentioned  day  is  appointed  for 

the  hearing  of  the  parties  hereto,  at  the  surrogate's  office 

in  the  city  of ,  on  the  confirmati(m  of  the  rei)()rf  of 

the  said  referee.' 

F.  W.,  Surrogate. 


Sprairiie  (125  id.,  732),  Matter  of  Foltfl  .Matter  of  GuincH  (84  Hiiii.  B'JO),  Mat- 

(71    Hun,  4'J2).    Matter   of  Palmateer  t.-r  of  S.'Hk'iiHt  ( 1  A|.|..  Div  ,  CIO). 

(7.S  id..  43),    Matter  of  Torkiiiton   (71t  '  S<-.'  .MatttM-  of  L.'llin>fw.-ll  (HO  lliiij, 

i<l.,  128),    Matter    of  Morj-an    (Inj  N.  r)2S).  U.-nedict  v.  Cooper  (:n)etii.,  3l52), 

Y..    76),  Hewlett   v.   Elmer   (103    i<l..  In    nr    IVarHall  (4    N.  Y.  Siipp..  3t?r)), 

156),  Matter   of  Miner  (140  id.,  121),  Matter  of  Plumb  (27  State  Roi...  299), 


1222  Forms  Relating  to 

No.  1366. 
Referee's  Report  on  Accoimting. 

(Code  Civ.  Pro.,  g  2546.) 

[Title  of  proceeding.  ] 
To  the  Surrogate' s  Court  in  and  for  the  County  of- 


It  having,  by  order,   made  and   entered  herein  on   the 
day  of ,  18 — ,  been  duly  referred  to  me  as 


referee  to  examine  the  account  of  J.  H  and  C.  F.,  as  execu- 
tors of  the  last  will  and  testament  of  P.  H.,  deceased  [and 
as  testamentary  trustees  under  said  will],  and  the  objections 
and  claims  thereto,  and  to  take  and  report  the  evidence 
upon  the  facts  in  the  said  proceedings  and  to  examine  the 
said  account,  and  to  hear  and  determine  all  questions  aris- 
ing upon  the  settlement  of  the  said  account  which  the  sur- 
rogate has  power  to  determine  ;  and  having  been  duly  sworn 
as  such  referee,  the  oath  taken  by  me  as  such  being  hereto 
annexed ;  and  having  thereupon  been  attended  by  counsel 
for  the  several  parties  appearing  herein,  and  having  heard 
the  proofs,  allegations  and  evidence  of  the  resf)ective  i)ar- 
ties,  1  do  find,  determine  and  report  as  follows  : 

First.  That  the  account  presented  and  filed  by  said  J.  H. 
and  C.  F.,  as  executors  of  the  last  will  and  testament  of 
R.  H..  deceased,  is  correct. 

That  the  said  executors  are  charged  therein  with  all 
moneys  and  property  received  by  them  from  or  on  account 
of  thn  said  estate,  and  have  made  for  and  on  account  of 
said  estate,  and  should  be  allowed  herein,  the  Bavments  set 
forth  and  credited  in  their  said  account  as  sucn  executors. 

[Second.  That  the  amount  received  by  said  executors 
from  the  proceeds  of  sales  of  securities  owned  by  said  tes- 
tator, was  all  that  was  collectable  and  receivable  therefrom 
by  them  ;  that  said  securities  were  pledged  by  the  testator 
as  collateral  to  certain  notes  and  indebtedness,  and  all  the 
moneys  realized  from  the  sale  of  said  securities  over  and 
above  the  amount  of  such  notes  or  indebtedness,  for  which, 
the  same  were  pledged,  was  paid  over  to,  and  is  accounted 
for  by,  said  executors  in  their  account  filed  herein.] 

Third.  That  the  moneys  received  by  said  executors  from 

Matter  of  Bayer  (54  Hun,  189),  Matter  551).  Matter  of  Gray  (91   N.  Y.,  502), 

of  Moullon  (32  State  Rep.,  631),  Mat-  Mills  v.  Hoffman  (92  N.  Y.,  181,  rev  g 

1.-1-    of  May   (31   id.,    50),    Matter   of  S.  C.  26   Hun,  594),  Dickel   v.  Yates 

Wheeler  (28  id.,  638).  In  re  Prout  (18  (2   Dem.,  229),  Matter  of  Dodge   (40 

Civ.  Pro.  R.,  270),  Matter  of  Falls  (29  Hun,  443  ;  105  N.  Y.,  585),  Matter  of 

State  Rep.,  759).  Matter  of  Havemeyer  O'Brien  (45  Hun,  284). 
(25  id.,  59),  Matter  of  Bedford  (30  Hun. 


SURKOGATES'    CoURTS.  1223 

the  sales  of  [other]  securities  and  personal  property  owned 
by  said  testator,  was  all  tliat  the  said  [last  mentiondj  securi- 
ties and  property  were  fairly  worth. 

That  said  sales  were  made  at  public  auction  in  the  usual 
manner,  and  that  the  ordinary  means,  by  advertising,  etc., 
and  due  diligence  and  prudence,  were  used  in  obtaining  a 
just  price  for  the  same. 

Fourth.  That  the  said  executors  are  not  chargeable  with 
or  accountable  herein  for  the  articles  enumerated  in  the 
inventory  filed  by  them,  and  therein  marked  "exempt," 
or  for  so  much  of  the  articles  enumerated  and  approved  in 
their  said  inventory,  and  therein  marked  "reserved  for 
widow,"  as  amount  in  value  to  [three  hundred]  dollars  by 
said  inventory  and  appraisal. 

Fifth.  That  the  total  amount  of  moneys  received  and 
realized  by  said  executors  from  the  body  or  principal  of  the 
testator's  estate,  which  came  into  their  hands  as  executors 

on  his  decease,  is dollars,  and  the  total  amount 

expended  by  them  therefrom  for  debts  of  the  testator  and 

funeral  expenses  is dollars,  and  there  is  now  in 

their  hands  thereof,  in  money,  the  sum  of dollars. 

Sixth.  That  the  said  executors  have  also  in  hand,  and 
unadministered  and  undisposed  of,  the  following  property 
and  assets  belonging  to  said  estate,  to  wit  [enumerate  same]. 

That  the  claims  mentioned  in  said  account  against  the  said 
J.  H.  and  C.  F.,  i^ersonally,  were,  at  the  time  of  the  testa- 
tor's death,  and  have  ever  since  been,  uncollectible,  and  are 
probably  of  little  or  no  value  [beyond  the  share  or  interest 
of  said  J.  H.  and  C.  F.  in  the  testator's  estate]'  [or  insert 
other  findings  as  may  be  necessary]. 

All  of  which  is  respectfully  submitted.  The  evidence 
and  testimony  and  proofs,  taken  by  me  herein,  are  also 
herewith  certified  and  returned.^ 

Dated ,  18—. 

J.  F.,  Referee. 

•As  to  claiius  against  the  executors  'See  note  1  to  last  form  No.  1365. 
personally,  see  Baucus  v.  Stover  (89  J5y  an  amemlinent  to  §  2^A(>  of 
N.  Y.,  1  ;  rev'g  S.  C,  24  Ilun,  109),  Code  Civ.  Pro.,  by  ch.  79G  of  1895,  the 
Matter  of  Consalus  (9.")  N.  Y.,  340),  report  must  bo  passt'il  upon  anil  con- 
Matter  of  Potter  (32  Ilun,  599),  Matter  firmed,  approved,  modifiud  or  rejected 
of  Jones  (2  Misc.,  221),  Matter  of  by  a  surroyate  witliin  Hixly  <luyH  aftt^r 
Coojier  (6  iil.,  501).  it  has  been  submitted  to  him. 


1224  Forms  Relating  to 

No.  1367. 
Order  of  Surrogate  for  Trial  by  Jury. 

(Code  Civ.  Pro.,  §  2547.) 

See  form  No.  353,  ante.'' 


Article  Third. 

FORMS  RELATING  TO  DECREES  AND  ORDERS  OF  THE  SURRO- 
GATE'S COURT  AND  THE  ENFORCEMENT  THEREOF. 

(Code  Civ.  Pro.,  Cli.  18,  Tit.  2,  Art.  3.) 

No.  1368.     Transcript  of   surrogate's  decree  directing  payment  of  sum  of 
money. 

1369.  Execution  upon  surrogate's  decree  directing  payment  of  sum  of 

money. 

1370.  Alfidavit  in  proceedings  for  contempt,  in  not  obeying  surrogate's 

decree  directing  payment  of  sum  of  money. 

1371.  Affidavit  of  appraisers  as  to  days  occupied,  and  expenses  in  making 

appraisal  and  inventory. 


No.  1368. 

Transcript  of  Surrogate's  Decree,  Directing  Payment  of 
Sum  of  Mouey. 

(Code  Civ.  Pro.,  §  2553.) 


Name  (and  Residence,  Title,  Trade  or  ProfeB8ion)9  of  Party 
against  whom  Decree  was  Rendered. 


Name  of  Party  fo  whose  favor  Decree  was  Rendered. 


Time  of  Filing  Decree. 


18- 


,  o'clock  and 

minutes,  —  M. 


Name  of  Attorney  for  Party  in  whose 
favor  Decree  was  Rendered. 


'  As  to  review  of  trial  by  jury,  pur-  '  These  are  required  to  appear  by 
suant  to  the  order,  see  sections  2548,  section  1246  of  Code  Civ.  Pro.,  in  case 
2549,  Code  Civ.  Pro.  any  of  them  are  stated  in  the  judg. 

ment. 


Surrogates'  Courts.  1225 

Surrogate's  Court, 


County^ 


ss. 


I  do  hereby  certify  that  the  foregoing  is  a  transcript  of  a 
decree  for  the  payment  of  a  sum  of  money,  made  and  en- 
tered in  the  surrogate's  court  of county. 

In  witness  whereof,  I  have  hereunto  set  my  liand  and  the 

seal  of  the  said  court,  on  this day  of ,  18 — .' 

[L.  s.]  F.  W.,  Surrogate  of County 

[or  M.  G.,  Clerk  of  Surrogate's  Court  of Couiity], 


No.  1369. 

Execution  upon  Surrogate's  Decree  Directing  Payment  of 
Sum  of  Money. 

(Code  Civ.  Pro.,  §  2554.) 

The  People  of  the  State  of  New  York,  to  the  Sheriff  \or 
the  Coroners,  or  A.  N.,  a  Coroner,  of  the  County  of 

Whereas,  a  decree  was  made  by  the  surrogate's  court  of 

the  county  of ,  on  the  day  of , 

18 — ,  in  a  proceeding  in  said  court,  in  the  matter  of,  etc. 
[giving  title  of  proceeding],  directing  the  payment  by  A.  B. 

[the  executor,  etc.],  of  the  sum  of dollars  into  said 

surrogate's  court  [or  to  C.  D.,  etc.  (a),  party  to  said  proceed- 
ing], and  a  transcript  of  said  decree  was  filed  and  said  judg- 
ment was  duly  docketed  in  the  office  of  the  clerk  of  your 
county  on  the day  of ,  18 —  ;  and. 

Whereas,  there  is  now  actually  due  upon  the  said  decree 
the  sum  of dollars  and cents,  witli  inter- 
est thereupon  from  the day  of ,  18 — : 

Now,  therefore,  you  are  hereby  required  to  satisfy  the 
said  decree  out  of  the  j^ersonal  property  of  the  said  A.  13., 
and  if  sufficient  personal  property  cannot  be  found,  out  of 
the  real  property  belonging  to  him  nf  the  time  wlien  said 
judgment  was  docketed  in  the  clerk's  office  of  tlip  comily 
c>f ,  or  at  any  time  thereafter,  and   to  rriimi   this 


'  As  to  assignment  and  satisfaction  *  See  as  to   direction   of  execution, 

of  decree,  see  section  25r>3,  Code  Civ.  section  lliG'J,  (Axlo  Civ.  Pro.,  and  note 

Pro.,    and    form    No.  489  ;    Matter  of  1  to  form  No.  OGG. 
Wilcox  (1  MiHc,  f).')). 


1226  Forms  Relating  to 

execution  to  the  surrogate's  court  of county  within 

sixty    days    after  the  receipt  thereof. 

Witness,  Hon.  F.  W.,  surrogate  of county,  at 

,  on  this day  of ,  18 — .' 

[L.  s.]  F.  W.,  Surrogate  of County 

[or  P.  M  ,  Clerk  of  Surrogate' s  Court  of County]. 

Indorsed. 
[Title  of  proceeding.  ] 

Execution  to  [the  Sheriff^  of County : 

Levy dollars,  with  interest   thereon  from   the 

day  of ,  18 — ,  besides  your  fees  and  pound- 
age, as  within  directed,  and  return  this  execution  within 
sixty  days  after  its  receipt  by  you  to  the  surrogate's  court 

of county. 

F.  W.,  Surrogate,  etc. 

[or  P.  M.,  Cleric,  etc.]. 

Received ,  18 — ,  at o'clock  —  m. 

M.  K,  SJieri^ 
[By  M.  N.,  his  Deputy]. 


No.  1370. 

Affldayit  in  Proceedings  for  Contempt  iu  not  Obeying  Sur- 
rogate's Decree  Directing  Payment  of  a  Sum  of  Money. 

(Code  Civ.  Pro.,  §2555.) 

[Title  of  proceeding.  ] 

County,  ss.  : 

A.  B.,  of ,  being  duly  sworn,  says,  that  on  the 

day  of ,  18 — ,  a  decree  was  rendered  by 


the  surrogate's  court  of  the  county  of  ,  a  copy  of 

which  is  hereto  annexed  [or  state  substance  of  decree]. 

That  on  the day  of ,  18—,  a  copy  of  the 

said  decree,  duly  certified  by  the  surrogate  of county 

[or  by  the  clerk  of  the  surrogate's  court  of county], 

•  See,   generally,  as   to   executions,  Ritterman  (2  Dem.,  242).     See,    also, 

notes  to  forms  5.56,  etc.,  and  see  Bing-  amendments  to  §  25.54  Code  Civ.  Pro., 

ham  V.  Burlingame  (19  "Week.  Dig.,  by   ch.   946   of  Laws   of  1S95,   taking 

447;  S.    C,   33  Hun,  211),  Matter  of  effect  Jan.  1,  1896 ;  Matter  of  Waring 

Dissosway  (91  N.  Y.,  235),  Disosway  (7  Misc.,  502). 
V.    Hayward  (1  Dem.,  175),   Joel  v. 


Surrogates'  Courts.  1227 

was  served  upon  tlie  said  C.  D.  [naming  the  party  directed 

to  make  the  payment]  [and  payment  of  the  sum  of 

dollars,  required  by  said  decree  to  be  paid  by  him,  was  duly 
demanded  by  said  deponent  {or  by  M.  F.,  the  duly  author- 
ized attorney  of  said  deponent,  whose  power  of  attorney  was 
exhibited  and  the  nature  of  his  authority  stated  at  the  time 
when  said  demand  was  made  and  copy  served)  (as  appears 
by  the  affidavit  of  said  M.  F.  hereto  annexed)].' 

[That  a  transcript  of  said  decree  was  duly  filed,  and  said 
judgment  duly  docketed,  in  the  clerk's  office  of  the  county 

of ,  on  the day  of ,  18—,  and  ap 

execution  was  issued  against  the  property  of  the  said  C.  D., 
on  the day  of ,  18 — ,  as  prescribed  by  sec- 
tion 2554  of  the  Code  of  Civil  Procedure,  to  the  sheriff  of 

said  county  of ,  a  copy  of  which  execution  is  hereto 

annexed,  and  that  said  execution  has  been  returned  by  the 
said  sheriff  wholly  unsatisfied  {or  unsatisfied  to  the  extent 

of dollars),  and  that  said  amount,  with  interest, 

etc.,  still  remains  due  and  unpaid  upon  said  decree  from 
said  C.  D.  to  the  said  deponent].^ 

That,  etc.  [as  in  form  No.  209,  substatially,  from  (f)]. 

A.  B. 

[Jurat  as  in  form  No.  46.] 


No.  1371. 

Affidavit  of  Appraisers  as  to  Bays  Occupied,  and  Expenses 
in  Making  Appraisal  and  Inventory. 

(Code  Civ.  Pro.,  §2565.) 

County,  ss.  : 

A.  B.  and  C.  D.,  being  severally  duly  sworn,  say,  and 
each  for  himself  says,  that  they  were  apj^ointed  by  the  sur- 
rogate of county,  by  an  order  made  and  entered 

>  See  section  2555,  Code  Civ.  Pro.,  19;  8.  C,  34  Ilun.  302).     In  the  ciises 

also  note  1  to  form  No.  1186.  mentioned  "in  subds.  1  and  4  of  section 

"  See  In  the  matter  of  Dissosway  (91  2555,  Code  Civ.   Pro. ,  this  chiuse  in 

N.  Y.,  235),  Woodhou.si;  v.  "Woodliouse  l)rackets  is  to  be  omitted. 

(5  Red.,  131),  Matter  of  Kcllinircr  (1  For   forms   of  furtlicr   i)r«uce<ling8 

Ucm.,  433),  .Joel  v.  Kittormiin  (5  Ik-df.,  for  coiitfinpt,  see  forms  1 185,  etc 
.36),  In  re  Snyder,  Kx.  ('21  Week.  1)!;,'., 


1228  Forms  Relating  to 

by  him  on  the day  of ,  18 — ,  appraisers  of 

the  goods,  etc.,  of  E.  F.,  deceased. 

That  they,  as  such  appraisers,  appraised  and  made  an 
inventory  of  the  said  goods,  etc. 

That  the  time  actually  and  necessarily  occupied  by  each 

of  them  in  making  said  apx)raisal  and  inventory  was 

days,  and  that  their  actual  expenses  as  such  appraisers 

amounted  to  the  sum  of dollars,  to  wit  [state  items 

of  expenses]. 

A.  B. 

C.  D. 

[Jurat  as  in  form  No.  46.] 


Article  Fourth. 

FORMS  RELATING  TO  APPEALS  FROM  DECREE  OR  ORDER  OP 
SURROGATE'S  COURT. 

(Code  Civ.  Pro.,  Ch.  18,  Tit.  2,  Art.  4.) 

No.  1372.     Affidavit  by  person  appealing,  not  a  party  to  the  special  proceeding. 
1373.     Notice  of  entry  of  surrogate's,  etc.,  decree,  or  order  to  limit  time  cf 
appeal  therefrom. 

1874.  Notice  of  appeal  from  decree  or  order  of  surrogate  or  surrogate's 

court. 

1875.  Undertaking  on  appeal  from  surrogate's,  etc.,  decree  or  order,  ip 

cases  under  sections  2577,  2578,  Code  of  Civil  Procedure. 

1376.  Judgment  or  order  upon  appeal  from  surrogate's,  etc.,  decree. 

1377.  Order  awarding  jury  trial  upon  reversal  of  surrogate's  decree  ia 

probate  cases. 


No.  1372. 

Affidavit  by  Person  Appealing,  not  a  Party  to  the  Special 

Proceeding. 

(Code  Civ.  Pro.,  §  2569.) 

[Title  of  proceeding.] 

■ County,  ss.  : 

E.  F. ,  of ,  being  duly  sworn,  says,  that  he  [*]  is 

a  creditor  of  [or  a  person  interested  in]  the  estate  of  M.  N., 
deceased  [or  in  the  fund  affected  by  the  decree  {or  order) 

entered  in  the  above  entitled  proceeding  on  the 

day  of ,  18 — ,  by  the  surrogate's  court  {or  surrogate) 

'  Appraisers  have  no  right  to  receive  sent.     (Matter  of  Harriott,  145  N.  Y., 

for  their  fees  more  than  the  statute  540.)     Under  the  amendment  of  §  2711, 

allows,  however  large  the  estate  may  Code  Civ.  Pro.,  by  ch.  686  of  Laws  of 

be,  unless  the  parties  interested  con-  1893,    the   number   of  days'  services 


Surrogates'  Courts.  1229 

of county  (state  nature  of  decree  or  order)],  by- 
reason  of  [state  indebtedness  or  interest]. 

That  he  was  not  a  party  to  the  above  entitled  proceeding, 
but  was  entitled  by  law  to  be  heard  therein  upon  his  appli- 
cation. 

[Or  as  above  to  (*)  and  from  thence  as  follows :  Has  ac- 
quired, since  the  decree  {or  order)  made  and  entered  in  the 
above  entitled  proceeding  by  the  surrogate's  court  {or  sur- 
rogate) of county,  on  the day  of , 

18 —  (state  nature  of  decree  or  order),  a  right  {or  interest)  in 
the  estate  of  M.  N.,  deceased  {or  in  the  fund  affected  by 
said  decree,  etc.),  which  right  {or  interest)  is  as  follows  (state 
same) ;  that  said  right  {or  interest)  woui:l  have  entitled  him 
to  be  heard,  if  it  had  been  acquired  previously  to  the  time 
when  the  said  decree  {or  order)  was  made.'] 

E.  F. 

[Jurat  as  in  form  IS'o.  46.] 


No.  1373. 

Notice  of  Entry  of  Surrogate's,  etc.,  Decree  or  Order  to 
Limit  Time  for  Appeal  Therefrom. 

(Code  Civ.  Pro.,  ^5^572.) 

Substantially  the  same  as  ionn  No.  551,  making  neces- 
sary changes.* 

No.  1374. 

Notice  of  Appeal  from  Decree  or  Order  of  Surrogate  or 
Surrogate's  Court. 

(Code  Civ.  Pro.,  g  2574.) 

[Title  of  proceeding.] 

Take  notice,  that  A.  B.  a])peals  [upon  questions  of  law 
and  upon  the  facts] '  to  the  Supreme  Court*  from  the  decree 

rendered  by  and  the  amount  of  the  copy  thereof  served,  with  the  notice 

expenses   of   th«   apprai.ser   must   be  of  ajJiieal,  form  No.  1374.     (Code  Civ. 

verified    by    the    allidavit  of  i\\ '.    ap-  Pi-o  ,  §  li.')!;*.).) 

praiser,  delivered  to  the  executor,  etc.,  ^  St^e,  al.so,  iioteH  to  form  No.  551,  and 

and  adjusted  hy  the  Hurrog'ate  before  nee  Matter  of  WilliaiiiH  (ti  MiM<!.,  51'J). 

I)aytiietil  of  his  fees.     (M)     Kee,  alHO,  *  See  Heetion  2.')7ti,  Code  Civ.   Pro., 

I)rovi.4ionH  of  §  250.'),  Code  Civ.  Pro.,  ami  In  re  JackHon  (19  Wcfk.  Di^,'..  27(1). 

and  see    amendment  to  nection    2509,  Matter  of  Potter  (:}2  II  ini,  S'.tit),  Matter 

Code  of  Civil  Proee.lure  by  ch.  68«  of  of  Will  of  Klewart  (laS  N.  Y  ,  413). 

Laws   of    1893,    forbiddinjf    clerk    or  *  (See  aeetionH  25t;,S.  2570.  Code  Civ. 

other    em[)loyee    of  Hiirrof,'-ate'H    ofhce  Pro.,  as  to  court  to  which  appeal  is  to 

to  act  as  appraiwer.  be  taken,  and  in  what  cawsB. 
'  This  atiidavit  must  be  filed,  and  a 


1230  Forms  Relating  to 

[or  final  order,  or  order] '  of  the  surrogate's  court  [or  of  the 

surrogate]  of  the  county  of ,  entered  in  the  above 

entitled  matter  on  the day  of ,  18 —  [state 

nature  of  order]  \or  from  so  much  of  the  decree  (or  order) 

of,  etc.,  entered  in  the  above  entitled  matter  on  the 

day  of ,  18 —  (state  nature  of  order),  as  directs  that, 

etc.]  [and  that  the  said  appellant  intends  to  bring  up,  for 
review,  upon  said  nppeal,  the  order  entered  in  said  proceed- 
ing on  the day  of ,  18 —  (specifying  briefly 

nature  of  the  order)].' 

Dated ,  18—. 

F.  C,  Attorney  for  Appellant. 
[Office  address.'] 

To  the  Surrogate  of  the  County  of [cmd  {specify 

parties  to  proceeding,  etc.y].* 


No.  1375. 

Undertaking  on  Appeal  from  Surrogate's,  etc..  Decree  or 
Order,  in  Cases  under  Sections  2577,  2578,  Code  Civil 
Procedure. 

(Code  Civ.  Pro.,  gg  2577,  2578,  2581.) 

[Title  of  proceeding.] 

Whereas,  on  the day  of ,  18 — ,  a  decree 

[or  order]  was  made  and  entered  in  the  above  entitled  pro- 
ceeding [in  the  surrogate's  court  in  {or  by  the  sunogate  of) 
the  county  of ],  admitting  to  probate  a  pajier  pur- 

'  The    final     determination    of   the  *  See  Code  Civ.  Pi-o.,  §§  2573,  2574. 

rig-bts  of  the  parties  to  a  special  pro-  As  to  appeal  by  jierson  not  a  party 

ceeding  in  a  surrogate's  court  is  styled,  to  the   )iroceeding,    and   affidavit  re- 

indifferently,  a  final  order  or  a  decree,  quired  in  such   case,   see   Code  Civ. 

(Code   Civ.    Pro.,   §   25.')0 ;   Matter  of  Pro.,    §§   2500,    2572,   and    form    No. 

Dissosway,  91  N.  Y.,  235).     A  direc-  1372;  "as  to  time  for  taking- appeal,  see 

tion  of  a  surrogate's   court,  made  or  id.,  §  2572. 

entered  in  writing,  and  not  included  For  sections  of  Code  Civ.  Pro.  made 

in  a  decree,  is  .^tyled  an  order.     (Code  applicable  to  these  apj)eals,  see  section 

Civ.  Pro.,  §  2556.)  2575,  id.,  and  see  forms  under  those 

'  See  Code  Civ.  Pro.,  §§  2571,  2578.  sections ;  and  see,  further.  Matter  of 

'  See  note  2  to  form  No.  122.  Williams  (6  Misc..  514),  Matter  of  Will 

Where  a  notice  of  appeal  is  signed  of  Stewart  (135  N.  Y..  413),  Matter  of 

by  an  attorney,  other  than  the  altor-  Allen  (81  Hun,  91),  Matter  of  Mmer 

ney  of  record,  the  objection  should  be  (146  N.  Y.,  121  ;  aff' g  S.  C,  72  Hun, 

raised  by  a  motion  to  dismiss  the  ap-  568). 
peal.     (Thierry  v.  Crawford  (33  Hun, 
366.) 


Surrogates'  Courts.  1231 

porting  to  be  the  wiir  of  G.  M.,  deceased  \or  othenvise  de- 
scribe nature  of  decree,  or  specify  part  of  decree  appealed 
from] ;  and, 

Whereas,  A.  B.  [a  party  to  said  proceeding],  feeling 
aggrieved  thereby,  intends  to  appeal  therefrom  to  the  Su- 
preme Court : 

Now,   therefore,  we,  E.  F.,  of ,  and  G.  H.,  of 

,  do  hereby  jointly  and  severally  undertake,  to  and 

with  the  people  of  the  State  of  New  York,  pursuant  to  the 
statute  in  such  case  made  and  provided,  [f]  that  the  said 
appellant  will  pay  all  costs  and  damages  which  may  be 
awarded  against  him  upon  said  appeal,  not  exceeding  two 
hundred  and  fifty  dollars. 

Dated ,  18—. 

E.  F. 
G.  H. 

[Acknowledgment  or  proof  as  in  forms  Nos,  340  and  538, 
and  affidavits  and  approval  by  surrogate  or  a  judge  of  the 
appellate  court  as  in  form  No.  ^340.] 

{Or  as  above  to  (f),  and  from  thence  as  follows :  In  the 

sum  of dollars,  that  the  said  appellant  will  pay  all 

costs  and  damages  which  may  be  awarded  against  him  upon 
said  appeal,  and  will  pay  the  said  sum  directed  by  said  de- 
cree, etc.,  to  be  paid  or  collected  {or  will  deposit,  or  distrib- 
ute the  money  directed  by  said  decree  to  be  deposited  or 
distributed,  or  will  deliver  the  said  property  directed  by 
said  decree  to  be  delivered),  or  the  part  thereof  as  to  which 
the  said  decree  {or  order)  is  affirmed.'] 

\0r  as  above  to  (*),  and  from  thence  as  follows  :  And  do 
further,  jointly  and  severally,  undertake  to  and  with  said 

people,  in  the  sum  of dollars,  that  if  the  said  decree 

{or  order)  appealed  from,  or  any  part  thereof,  is  affii'med,  or 
if  the  said  appeal  is  dismissed,  the  appellant  will,  within 
twenty  days  after  the  affirmance  or  dismissal,  surrender 
himself  in  obedience  to  the  said  decree  {or  order),  to  the 
custody  of  the  sheriff  of  the  county  of .*] 

'  See  section   2514,   subd.    4,   Code  appeal  from  an  order  or  dcereu  specl- 

Civ.  Pro.  fled  in  sec-lion  2ri7H  nf  i\n\v  Civ.  Pro. 

'  Insert   this  clause  in   brackets,  in  ^  Insert  tliis  clause  in   lirackrls,  in 

case  a  stay  of  execution  is  desired  on  case  a  stay  of  execution  is  desired  on 


1232  Forms  Relating  to 

No.  1376. 

Judj^meiit  or  Order  upon  Appeal  from  Surrogate's,  etc.. 

Decree. 

(Code  Civ.  Pro.,  §  2573.) 

See  forms  Nos.  630  to  536,  which  may  be  adapted  to  the 
judgment  required  in  tliese  cases,  excepting  order  of  re- 
versal in  probate  cases,  as  to  which,  see  next  form  No.  1377 ; 
see,  also  notes  to  those  forms.' 


No.  1377. 


Order  Awarding  Jury  Trial  upon  Reversal  of  Surrogate's 
Decree  in  Probate  Cases. 

(Code  Civ.  Pro.,  §  2588.) 

As  in  form  No.  529  to  [*],  and  from  thence  as  follows : 
The  appeal  from  the  decree  of  the  surrogate's  court  in  the 
county  of ,  entered  in  the  above  entitled  proceed- 
ing on  the day  of ,  18 — ,  admitting  to  pro- 
bate \or  revoking  the  probate  of]  the  will  of  M.  F.,  deceased, 
having  been  heard  at  this  term,  it  is  hereby,  on  motion  of 
A.  M.,  for  the  appellant,  and  after  hearing  M.  N.,  for  the 
resi:)ondent : 

Ordered^  that  the  said  decree  be  and  the  same  is  hereby 
wholly  reversed,  and  that  a  trial  by  a  jury  of  the  material 

appeal  from  an  order  or  decree  speci-  As  to  how  far  proceedings  are  stayed 

fied  in  section  2579  of  Code  Civ.  Pro.  by  appeal,  see   §§  2582,   2583,   2584, 

See,  also,  as  to  undertaking  and  stay  Code  Civ.  Pro.,    Matter  of  Gaines  (83 

generally,    Sudlow    v.    Pinckney     (1  Hun,  225). 

Dem.,  158),  DuBoisv.  Brown  (1  Dem.,  i  See,  as  to  costs  of  appeal,  Code 
317,  334),  MaUer  of  Bullard  (4  Civ.  Civ  Pro.,  §2589;  Cole  v.  Terpenning 
Pro.  Rep.  [Browne],  284);  and  as  to  (2';  dun.  111),  Matter  of  will  of  Mar- 
amount  of  undertaking,  and  liow  fixed,  tin  (98  N.  Y.,  193;  S.  C,  32  Alb.  Law 
see  Code  Civ.  Pro.,  §  2580,  as  to  un-  Jour.,  31). 

dertaking  guaranteed  by  company,  see  That  a  decree  or  order  of  the  surro- 

last  paragraph  of  note  1  to  form  No.  gate's  court  may  not  be  reversed  for 

341,   and  ch.  401   of  Laws  of  1885,  an  error  in  admitting  or  rejecting  evi- 

amending  ch.  486  of  Laws  of  1881;  dence.  unless  it  appears  to  the  appel- 

Nichols  v.  McLean  (20  Week.  Dig.,  late  court  that  the  exceptant  was  neces- 

492;  S.  C,  98  N.  Y.,  458),  Hurd  v.  sarily  prejudiced    thereby,    see  Code 

Hannibal,   etc.,  R.   R.  Co.  (33  Hun,  Civ.  Pro.,  g  2545;  Matter  of  will  of 

109);  also  see  notes  to  forms  Nos.  340,  Smith  (95  N.  Y.,  516;  S.  C,  19  Week. 

341,  538,  as  to  undertaking  generally.  Dig.,  220),  Snyder  v.  Sherman  (88  N. 

Y.  656),  In  re  Ross  (87  N.  Y.,  514). 


Surrogates'  Courts.  1233 

questions  of  fact,  arising  upon  the  issues  between  the  par- 
ties, be  and  the  same  is  hereby  directed  [with  costs  to  abide 
the  event  of  said  trial]. 

And  it  is  further  ordered,  that  the  following  issues  of  fact 
are  to  be  tried  by  said  Jury,  to  wit  [stating  same]. 

And  it  is  further  ordered,  that  said  trial  be  had  at  a  cJi 

cuit  court  in  and  for  the  county  of ,  to  be  held  a., 

etc.,  on,  etc.  [o?'  at  a  term  of  the county  court  {or 

of  the  court  of  common  pleas  for  the  city  and  county  of  New 
York),  to  be  held  at,  etc.,  on,  etc.].* 


Article  Fifth. 


FORMS  RELATING  TO  PROVISIONS  RELATING  GENERALLY  TO 
letters,  and  GENERALLY  TO  EXECUTORS,  xVDMINISTRA- 
TORS,  GUARDIANS  AND  TESTAJMENTARY  TRUSTEES. 

(Code  Civ.  Pro.,  Ch.  18,  Tit.  2,  Art.  5.) 

No.  1378.     OflBcial  oath  of  executor,  administrator  or  guardian. 

1379.  Order  directing  deposit  of  security  with  surrogate  or  with  trust 

compau}'. 

1380.  Order  authorizing  withdrawal,  etc.,  of  security  from  county  treas- 

urer or  trust  company  by  executor,  etc. 

1381.  Petition  for  new  bond  or  new  sureties  to  be  given  b}'  executor,  etc. 

1382.  Order  that  citation  issue  to  executor,  etc.,  to  show  cause  why 

prayer  of  petition  (No.  1381)  should  not  be  granted. 
1883.     Citation  to  executor,  etc.,  to  show  cause  why  the  prayer  of  petition 
(No.  1381)  should  not  be  granted. 

1384.  Order  upon  return  of  citation  (No.  1383). 

1385.  Decree  after  expiration  of  time  fixed  for  filing  new  bond,  etc, 

allowed  by  order. 
1886.     Petition  of  sureties  in  a  bond  for  their  relief  from  responsibility. 

1387.  Order  that  citation  issue  to  executor,  etc.,  pursuant  to  petition  (form 

No.  1386). 

1388.  Citation  requiring  executor,  etc.,  to  show  cause,  pursuant  to  peti- 

tion (form  No.  1386). 

1389.  Decree  on  return  of  citation  .'form  No.  1388). 

1390.  Order  directing  as  to  custody  of  property,  when  co-executors,  etc., 

disagree. 

1391.  Complaint  in  action  upon  official  ])oih1  of  administrator,  etc. 

1392.  Complaint  by  successor  of  admini.strator,  etc.,  upon  his  official 

bond,  after  revocatimi  of  letters. 

*  See,  also,  order  for  tnal  of  issues  Matter  of  will  of  Marliii  (98  N.Y..  193; 
by  jury,  form  No.  3.-)3.  and  .see  In  re  S.  C.  82  Alb.  Law  Jonr,  31).  See, 
will  of  Smith  (19  Week.  Dig..  2.'}2),     also,  note  1  to  last  form  No.  1376. 


;2o4  Forms  Relating  to 

No.  1378. 
Official  Oath  of  Executor,  Administrator  or  Guardian. 

(Code  Civ.  Pro.,  g  '^594.'J 

County,  .<-6-.; 


I,  A.  B.,  of [the  executor  named  in  the  will],  of 

C.  D.,  late  of  the  [city]  of ,  in  the  county  of , 

deceased,  about  to  be  appointed  by  the  surrogate  of 

county  [executor  of  the  said  will],  do  solemnly  swear  and 
declare  that  I  will  well,  faithfully  and  honestly  discharge 
the  duties  of  such  [executor]  according  to  law. 

A.  B. 

[Jurat  as  in  form  No.  46.] 


No.  1379. 

Order  Directing  Deposit  of  Security  with  Surrogate  or 
with  Trust  Company. 

(Code  Civ.  Pro.,  §  2595.) 

[Title  of  proceeding.] 

The  value  of  the  estate  of  B.  C.  being  so  great  that  I 
deem  it  inexpedient  to  require  security  from  C.  IVI.,  execu- 
tor of  the  will  of  said  B.  C.  [or  administrator  of,  etc.,  of  said 
B.  C],  in  the  full  amount  prescribed  by  law,  I  do  hereby 
order  and  direct,  pursuant  to  section  2594  of  the  Code  of 
Civil  Procedure,  that  the  following  securities,  to  wit  [de- 
scribe same],  belonging  to  said  estate  [or  fund],  be  deposited 

with  me,  to  be  delivered  to  the  county  treasurer  of 

county  [or  to  be  deposited  with  the  (name  of  trust  com- 
pany), subject  to  the  order  of  said  C.  M.,  as  executor,  etc., 
countersigned  by  the  surrogate  of county]. 

Dated  at in  the  county  of ,  this 

day  of ,  18 — . 

C.  D.,  Surrogate  of County. 


No.  1380. 

Order  Authorizing  Withdrawal,  etc.,  of  Security  from 
County  Treasurer  or  Trust  Company  by  Executor,  etc. 

(Code  Civ.  Pro.,  §2595.) 
[Title  of  prorppdinc:.! 
An  order  having  been  heretofore  made  by  me,  in  the 


Surrogates'  Courts.  1235 

above  entitled  proceeding,  directing  the  deposit  of  the  fol- 
lowing securities  belonging  to  the  estate  of  B.  C,  with  me, 

to  be  delivered  to  the  county  treasurer  of county 

[or  to  be  deposited  with  the  (name  of  trust  company)],  sub- 
ject to  the  order  of  C.  M.,  as  executor,  etc.,  countersigned 

by  the  surrogate  of county  [and  said  securities 

having  been  so  delivered  and  deposited],  pursuant  to  said 
order,  and  an  additional  bond  having  been  given  by  said 

C.  jM.,  as  such  executor,  in  the  amount  of dollars 

[or  due  proof  having  been  made  to  me  by  the  affidavit  of 

said  C.  M.,  dated ,  18 —  {or  state  other  proof),  that 

the  estate  of  said  B.  C.  has  been  so  reduced  by  payments, 
etc.],  that  the  penalty  of  the  bond  originally  given  by  said 
C.  M.,  as  such  executor,  etc.,  will  be  sufficient  in  amount 
to  satisfy  the  provisions  of  law  relating  to  the  penalty 
thereof,  if  the  following  security  [or  securities],  to  wit  [state 
same],  is  [or  are]  reckoned  in  the  said  estate : 

Now,  upon  the  application  of  F.  G.,  for  said  executor,  etc., 
I  do  herebj^  order  and  direct,  that  the  county  treasurer  of 

[or  the  (name  trust  company)]  [*]  deliver  to  said  C.  ]Vf ., 

as  such  executor,  etc.  [upon  his  order,  countersigned  by  me],' 
the  said  [naming  security  or  securities  to  be  withdrawn]. 

[Or  as  above  to  (*),  and  from  thence  as  follows :  Pay  to 
said  C.  M.,  as  such  executor,  etc.  (upon  his  order,  counter- 
signed by  me),'  the  sum  of dollars,  being  the  prin- 
cipal {or  interest)  received  by  said  treasurer  {or  by  said 
coniijany)  upon  (naming  security,  etc.,  as  may  be  required).'} 


No.  1381. 

Petition  for  New  Bond  or  NeAv  Sureties  to  be  Given  by  Ex- 
ecutor, etc. 

(Code  Civ.  Pro.,  g  2597.) 

To  the  Surrogate's  Court  of county: 

The  petition  of  E.  F.,  respectfully  shows,  that  he  is  [state 
interest  in  estate  or  fund,  or  other  right  to  petition].' 

•  Insert  this  clause  in  brackets  wLt-re  section  2/59.')  of  Code  Civ.  Pro.,  wiia 

the  security  is  deposited  witL  a  trust  amended  .so  as  to  apply  to  a  guardian, 

company.     (Code  Civ.  Pro.,  t?  2r)Jt.'). )  »  As  to  wlio  may  petition,  see  Code 

«  By  chapter  510  of  Laws  of  \mTi,  Civ.  Pro.,  S  2597. 


1236  Forms  Kelating  to 

That  C.  M.,  who  was  iipi)ointed.  executor  [etc.]  of  the  will 

[etc.]  of  C.  B.,  by  the  said  surrogate's  court,  on  the 

day  of ,  18 — ,  executed  his  bjud,  in  due  form  of 

law,  with  C.  D.,  of ,  and  E.  F.,  of ,  as  sure- 
ties, in  the  sum  of dollars,  to  the  people  of  the 

State  of  New  York,  dated ,  18 — ,   conditioned  for 

the  faithful  discharge  of  the  trust  reposed  in  him  as  such 
executor,  etc.,  and  for  his  obedience  to  all  lawful  decrees 
and  orders  of  the  said  surrogate's  court,  touching  the  ad- 
ministration of  the  estate  committed  to  him,  as  will  more 
fully  appear  by  reference  to  said  bond  on  file  in  the  office 
of  the  surrogate  of  said  county.' 

And  your  petitioner  further  shows,  that  said  C.  D.  is 
insufficient  as  a  surety  in  said  bond  [state  reason  of  insuffi- 
ciency] [or  has  removed  {or  is  about  to  remove)  from  the 
State  of  ISTew  York,  or  show  that  the  bond  is  inadequate 
in  amount]. 

And  your  petitioner  prays,  that  the  said  C.  M.  may  be 
required  to  give  a  new  bond  as  such  executor,  etc.,  in  the 
penalty  of  at  least dollars  [or  to  give  new  {or  addi- 
tional) sureties  as  such  executor,  as  the  case  requires],  or, 
in  default  thereof,  that  he  may  be  removed  from  his  said 
office,  and  that  the  letters  issued  to  him  as  such  executor, 
etc.,  may  be  revoked." 

Dated ,  18—. 

E.  P. 

[Verification  as  in  form  No.  52.] 


No.  1382. 

Order  that  Citation  Issue  to  Executor,  etc.,  to  Show 
Cause  why  Prayer  of  Petitiou  (No.  1381)  Should  not  be 
Granted. 

(Code  Civ.  Pro.,  §  2597.) 

[At,  etc.,  as  in  form  No.  1394.] 
[Title  of  proceeding.  ] 

Upon  reading  and  filing  the  petition  of  E.  F.,  a  person 

'For  form  of  bond  of  administra-    Bick  v.  Murphy  (2  Dem.,  251,  cited 
tor,  etc.,  see  form  No.  1413.  in  note  3  to  form  No.  1386),  Stevens  v. 

«  See  Sutton  v.  Weeks  (5  Redf.,  353),     Stevens  (2  Dem.,  469). 


SUREOGATES'    CoURTS.  1237 

interested  in  the  estate  of  C.  B.,  as  [stating  interest,  etc.,  or 
other  right  to  petition],  in  writing  and  duly  certified,  dated 

,  18—,  praying  that,  etc.  [state  prayer  of  petition], 

and  on  motion  of  G.  H.,  counsel  for  said  petitioner : 

It  is  hereby  ordered,  that  a  citation  issue,  pursuant  to 
statute,  to  C.  M.,  executor  of  the  will  [etc.]  of  C.  B.,  requir- 
ing said  C.  M.  to  show  cause  why  the  prayer  of  said  petition 
should  not  be  granted. 

F.  W.,  Surrogate  of County. 


No.  1383. 

Citation  to  Executor,  etc.,  to  Show  Cause  why  the  Prayer 
of  Petition  (No.  1381)  Should  not  be  Granted. 

(Code  Civ.  Pro.,  §2597.) 

As  in  form  No  1345,  inserting  therein,  as  the  purpose  of 
the  citation,  as  follows  :  To  show  cause  why  you  should  not 
be  required  to  give  a  new  bond,  as  [executor  of  the  will  of 
B.  C,  deceased],  in  a  larger  penalty  than  your  present  bond 
given  as  such  [executor],  to  wit :  in  the  penalty  of  at  least 

dollars  [or  to  give  new  or  additional  sureties  as 

such  executor],  or  in  default  thereof  that  you  be  removed 
from  your  said  office,  and  that  the  letters  issued  to  you  as 
such  executor  [etc.]  be  revoked. 

In  testimony,  etc.  [conclude  as  in  form  No.  1345]. 

[Signature  as  in  form  No.  1345.] 


No.  1384. 
Order  upon  Return  of  Citation. 

(Code  Civ.  Pro.,  §  2598.) 

[Title  of  proceeding.] 

Upon  the  return  of  the  citation,  dated ,  18 — , 

issued  in  the  above  entitled  proceeding,  upon  filing  the 

X)etition  of  A.  B.,  dated  the day  of ,  18—, 

witli  proof  of  due  service  thereof  uj^on  C.  M.  [executor 
of  the  will  of  B.  C,  deceased],  and  said  C.  M.  having  ap- 
peared [by  J.  H.,  his  attorney],  and  tlie  surrogate  having 
heard  the  allegations  and  proofs  of  tlie  parties,  and  having 


1238  Forms  Relating  to 

found  certain  of  the  objections  of  said  petitioner  to  tlie 
[sureties  in  the  present  bond  of  said  executor],  to  be  valid, 
to  wit  [state  same],  and  after  hearing  M.  N.,  for  the  said 
petitioner,  and  said  J.  H.  for  the  said  C.  M.: 

I  do  hereby  order  and  direct,  that  said  C.  M.,  as  [execu- 
tor of  the  will  of  B.  C,  deceased],  give  new  and  additional 

sureties  [or  a  new  bond,  in  the  penalty  of dollars], 

within  live  days  from  the  date  of  this  order,  and  that,  in 
default  thereof,  his  letters  be  revoked. 

Dated ,  18—. 

F.  W.,  Surrogate  of County, 


No.  1385. 

Decree  After  Expiration  of  Time  for  Filing  new  Bond^  etc.. 
Allowed  by  Order. 

(Code  Civ.  Pro.,  §2599.) 
[At,  etc.,  as  in  form  No.  1394.] 
[Title  of  proceeding.] 

An  order  having  been  made  in  the  above  entitled  proceed- 
ing, dated ,  18 — ,  upon  the  return  of  the  citation 

therein,  directing  C.  M.,  the  [executor  of  the  will  of  B.  C, 
deceased],  to  give  new  [or  additional]  sureties  [or  a  new 

bond,  in  the  penalty  of dollars],  as  such  [executor], 

within  five  days  from  the  date  of  said  order  [and  that,  in 
default  thereof,  his  letters  be  revoked] ; '  and  the  said  O.  M. 
having  [*]  executed  a  bond  with  new  [or  additional]  sure- 
ties, and  said  bond  having  been  approved  by  me,  and  filed 

in  the  ofiice  of  the  surrogate  of county,  as  required 

by  said  order : 

I  do  hereby  order  and  decree,  that  the  above  entitled  pro- 
ceeding be  dismissed  with dollars  costs,  to  be  paid 

by,  etc.,  to  etc."" 

F.  W. ,  Surrogate  of  County . 

[Or  as  above  to  (*),  and  from  thence  as  follows :  Failed 
to  comply  with  the  said  order,  and  to  file  a  new  bond  as 

'  Omit  this  clause  in  brackets  where  *  As  to  amount  of  costs  to  be  allowed, 
the  proceedings  is  dismissed.  see  Code  Civ.  Pro.,  2561. 


Surrogates'  Courts.  1239 

thereby  required,  I  do  hereby  order  and  decree,  on  motion, 
€tc.,  and  after  hearing,  etc.,  that  the  said  C.  M.  be  and  he 
is  hereby  removed  from  the  office  of  (executor  of  the  will 
of  B.  C,  deceased),  and  that  the  letters  (testamentary  upon 
said  will)  heretofore  issued  to  him,  as  such  executor,  be  and 
they  are  hereby  revoked  (f)']  [and  that  said  C.  M.  be  and 
he  is  hereby  required  to  account  for  all  monej^  and  other 
property  received  by  him  as  such  (executor),  and  to  pay 
and  deliver  over  all  money  and  other  property  in  his  hands 
as  such  (executor),  into  this  court  {or  to  his  successor  in 
office)  {or  to,  naming  other  person  entitled  to  receive  same, 
etc.).']  

No.  1386. 

Petition  of  Sureties  in  a  Bond  for  their  Release  from  Re- 
sponsibility. 

(Code  Civ.  Pro.,  §2600.) 

To  the  Surrogate^  s  Court  of County  : 

The  petition  of  A.  B.  and  C.  D.  respectfully  shows,  that 
they  are  the  sureties  in  the  bond  of  C.  M.,  given  for  the 
faithful   discharge   of  his   duties   as   [name   office],   dated 

,  18 — ,  and  on  file  in  the  surrogate's  office  in  said 

county. 

That  they  desire  to  be  released  from  responsibility  as 
such  sureties,  on  account  of  any  future  breach  of  the  con- 
dition of  the  said  bond,  pursuant  to  the  provisions  of  title 
second  of  chapter  eighteenth  of  the  Code  of  Civil  Procedure. 

Wherefore  your  petitioners  pray,  that  they  may  be  re- 
leased from  responsibility  on  account  of  any  future  breach 
of  the  condition  of  said  bond,  and  that  the  said  C.  M.,  the 
principal  in  said  bond,  may  be  cited  to  show  cause  why  he 
should  not  give  new  sureties,  and  that  a  citation  may  issue 
accordingly.' 

Dated ,  18—. 

A.  B. 
C.  D. 

[Verification  as  in  form  No.  62.] 

'  A.S  to  effect  of  decree    revoking  as  to  this  portion  of  the  decTef'.aiul  see 

letters,  see   Code  Civ.   Pro.,  §§2603,  Peck  v.  Sherwood  (5  Hcdf.,  410;.  re- 

2604.  ferred  to  in  note  1  to  form  No.  V.\^^. 

*  See  section  2603,  Code  Civ.  Pro.,  *  It  was  A«W,  in  a  proceeding-  under 


1240 


FOKMS   E.ELATING   TO 


No.  1387. 

Order  that  Citation  Issue  to  Executor,  Pursuant  to  Peti- 
tion (form  No.  1386). 

(Code  Civ.  Pro.,  §2601.) 

[At,  etc.,  as  in  form  No.  1394.] 
[Title  of  proceeding.] 

Upon  reading  and  filing  the  petition  of  A.  B.  and  C.  D., 

dated ,  18—,  praying  that  they  may  be  released 

from  responsibility  on  account  of  any  future  breach  of  the 
condition  of  the  bond  of  C.  M.  [executor,  etc.],  upon  which 
they  are  sureties : 

It  is  hereby  ordered,  that  a  citation  issue  to  said  C.  M. 
pursuant  to  the  prayer  of  said  petition. 

Dated ,  18—. 

F.  W.,  Surrogate^  etc. 


No.  1388. 

Citation  Requiring  Executor,  etc.,  to  Show  Cause,  Pur- 
suant to  Petition  (form  No.  1386). 

(Code  Civ.  Pro.,  §2601.) 

As  in  form  No.  1345  to  [*],  and  from  thence  as  follows : 
To  show  cause  why  A.  B.  and  C.  D.,  the  sureties  in  the 


ch.  229  of  the  Laws  of  1862,  amending 
ch.  460  of  Laws  1837,  of  which  sections 
2600  and  2601  of  Code  Civ.  Pro.  are  a 
revision,  that  the  statute  excluded  the 
idea  that  either  the  administratrix,  or 
any  parties  interested  in  the  estate, 
might  require  the  surety  to  continue 
as  such  against  his  will,  and  accord- 
ingly that  the  fact  that  the  surety  and 
his  relations  are  indebted  to  the  estate, 
and  that  his  object  in  making  the  ap- 
plication is  in  order  to  procure  the  ad- 
ministration to  be  transferred  to  a  per- 
son who  will  refrain  from  enforcing 
payment  of  such  debts  from  him  and 
them  is  not  ground  for  refusing  the  ap- 
plication. (Lewis  V.  Watson,  3  Redf . , 
48.) 


An  application,  under  section  2600 
of  Code  Civ.  Pro.,  cannot  be  blended 
with  one  under  section  2598  (id.),  and 
an  attempt  so  to  unite  them  is  suffi- 
cient ground  for  their  dismissal.  (Bick 
V.  Murphy,  2  Dem.,  251.) 

It  seems,  that  sections  2600  and  2601 
of  Code  Civ.  Pro.,  do  not  effect  any 
substantial  alteration  in  tbe  pre-exist- 
ing law.  contuineti  in  Laws  1837,  ch. 
460,  and  its  amendments.  (Shook  v. 
Goddard,  2  Dem.,  201.) 

These  sections  do  not  apply  to  a  bond 
executed  in  1878.     (Id.) 

As  to  service  of  citation  in  this  pro- 
ceeding  on  non-resident  executor  out 
of  the  State,  see  Stevens  v.  Stevens  (3 
Redf.,  507). 


Surrogates'  Courts.  1241 

bond  of  C.  M.,  executor,  etc.,  dated  ,  18—,  and 

filed  in  the  surrogate's  office  of county,  should  not 

be  released  from  responsibility  on  account  of  any  future 
condition  of  the  said  bond  : 
In  testimony  whereof,  etc.  [as  in  form  No.  1345].' 

F.  W.,  Surrogate^  etc. 


No.  1389. 
Decree  on  Return  of  Citation  (form  No.  1388). 

(Code  Civ.  Pro.,  §2601.) 

[At,  etc.,  as  in  form  No.  1394.] 
[Title  of  proceeding.] 

The  citation  heretofore  issued  in  the  above  entitled  pro« 
ceeding,  upon  filing  the  petition,  duly  verified,  of  A.  B.  and 
C.  D.,  the  sureties  in  the  bond  of  C.  M.  [executor,  etc.], 
having  been  returned  with  due  i)roof  of  service  upon  [*] 
C.  M.,  the  said  [executor],  and  the  said  C.  M.  having  filed 
in  the  office  of  the  surrogate  of  this  county  a  bond  in  the 
usual  form,  as  such  [executor],  with  new  sureties,  to  the 
satisfaction  of  the  surrogate  [within  the  time  fixed  by  said 
surrogate  therefor] : 

It  is  hereby  ordered  and  decreed  by  said  surrogate,  and 

by  this  court,  on  motion  of ,  of  counsel  for  said 

petitioners,  after  hearing,  etc.,  that  A.  B.  and  C.  D.,  the 
petitioners  herein,  be  and  they  hereby  are  released  from 
their  liability  upon  the  bond  of  C.  M.,  given  for  the  faith- 
ful discharge  of  his  duties  as  [executor,  etc.],  dated , 

18 — ,  and  on  file  in  said  surrogate's  office,  for  any  act  or  de- 
fault of  said  C.  M.,  as  such  [executor],  subsequent  to  the 
date  of  this  decree.'' 

F.  W.,  Surrogate^  etc. 

[Or  as  above  to  (*),  and  from  thence  as  follows  :  And  the 
said  C.  M.  not  having,  within  the  time  fixed  by  the  suiro- 
gate  therefor,  filed  in  the  surrogate's  office  of  this  county  a 
bond  in  the  usual  form,  with  new  sureties,  to  tho  safisfac- 
tioii  of  the  surrogate  ;  it  is  hereby  ordered  and  rlecreed  l)y 


»  See  notes  to  form  No  1386.  »  See  note  8  to  form  No.  1886. 

156 


1242  Forms  Relating  to 

said  surrogate,  and  by  this  court,  that  the  letters  testa- 
mentary heretofore  issued  to  said  C.  M.,  upon  the  will  of 
B.  C,  be  and  the  same  are  hereby  revoked  (add  further 
provisions,  as  may  be  required).'] 


No.  1390. 

Order  Directing  as  to  Custody  of  Property  when  Co-execu- 
tors, etc..  Disagree. 

(Code  Civ.  Pro.,  §2602.) 

[At,  etc.,  as  in  form  No.  1394.] 
[Title  of  proceeding.] 

It  having  appeared,  by  the  affidavit  [or  verified  petition] ' 
of  J.  K.,  dated ,  18—,  that  said  J.  K.  and  his  co- 
executor  F.  P.,  of  the  will  of  B.  C,  deceased,  disagree 
respecting  the  custody  of  the  money  [or  property]  belong- 
ing to  the  estate  of  the  said  B.  C,  and  an  order  having  been 
thereupon  made,  upon  the  application  of  said  J.  K.,  requir- 
ing said  F.  P.  to  show  cause  why  the  surrogate  should  not 
give  directions  as  to  the  disposition  of  said  money  [or  i)rop- 
erty],  and  said  order  to  show  cause  having  been  duly  served 
upon  said  F.  P.  as  thereby  required : 

Now,  upon  the  return  of  said  last  mentioned  order,  and 
after  hearing  M.  G.  for  said  applicant,  and  E.  F.  for  said 
F.  P.: 

It  is  hereby  ordered,  that  the  said  i^roperty  of  said  estate 
[or  designate  particular  property]  be  deposited  in  [name 
place]  in  the  joint  custody  of  the  said  [executors],  and  sub- 
ject to  their  joint  order  [or  that  the  said  money  of  said 
estate  {or  designate  particular  money)  be  deposited  in  the 

bank  {or  name  trust  company),  to  be  di'awn  out 

upon  the  joint  order  of  said  executors)].^ 

F.  W.,  Surrogate^  etc. 


'  See  section  2G03,  Code  Civ.  Pro.,  'See   Thompson  v.   ISIott  (1  Dem., 

and  form  No.    1385.     "Whether  pay-  32),  Guion  v.  Underhill  (id. ,  302),  Has- 

ment  to  a  legatee  can  be  decreed  under  sey  v.  Keller  (id. ,  577). 

Code  Civ.  Pro.,  §  2603,  quaere.     (Peck  Disobedience  of  the  directions  of  the 

v.  Sherwood,  5  Redf.,  416.)  order  may  be  puni.shed  as  a  contempt 

«  A  verified  petition  is  an  affidavit,  of  the  court.    (Code  Civ.  Pro.  ,§  2602.) 
<Code  Civ.  Pro.,  |  3343.  subd.  11.) 


SUREOGATES'    CoURTS.  1243 

No.  1391. 

Complaint  in  Action  upon  Ofticial  Bond  of  Administra- 
tor, etc. 

(Code  Civ.  Pro.,  5^2607.) 

[Title  of  cause.] 

The  complaint  of  the  above  named  plaintiff  respectfully 

shows,  that  on  or  about  the day  of ,  18 — , 

the  defendant,  A.  B.,  was  apj)ointed  the  administrator  of, 
etc.,  of  B  C,  deceased,  and  duly  qualified  and  entered  upon 
the  discharge  of  his  duties  as  such  administrator. 

That  before  entering  upon  the  discharge  of  his  said  duties, 

and  on  the day  of ,  18 — ,  he,  together  with 

the  defendants,  E.  F.  and  G.  H.,  as  his  sureties,  executed 

and  filed  in  the  ofiice  of  the  surrogate  of county 

their  joint  and  several  bond,  as  required  by  law,  in  the  penal 
sum  of dollars,  conditioned  for  the  faithful  dis- 
charge by  said  A.  B.  of  the  trust  reposed  in  him  as  such 
administrator,  and  for  his  obedience  to  all  lawful  decrees 

and  orders  of  the  surrogate's   court  of  county, 

touching  the  administration  of  the  estate  committed  to 
him  as  such  administrator,   [f] 

And  the  plaintiff  further  shows,  that  on  the day 

of ,  18 — ,  a  decree  was  dulj^  rendered '  hj  the  surro- 
gate of county,   adjudging  that  said  A.  B.  was 

chargeable  as  such  administrator  with  the  sum  of 

dollars,  directing  the  payment  by  said  A.  B.  of  the  said 
sum  to  the  plaintiff,  a  copy  of  which  decree  is  hereto  an- 
nexed. 

That  a  transcript  of  said  decree  was  duly  filed  and  said 

judgment  was  duly  docketed  in  the county  clerk's 

office,  on  the day  of ,  18 — . 

That  on  the day  of ,  18 — ,  an  execution 

was  issued  upon  said  decree  against  the  property  of  said 

A.  B.  to  the  sheriff  of  the  county  of [where  said 

A.  B.  then  resided  and  still  residesl,'  which  execution  has 
been  since  duly  returned  by  said  sheriff  Avholly  unsatisfied 
fw*  unsatisfied  to  the  extent  of dollars]. 

»  See  section  532,  Code  Civ.  Pro.,  as  » Insert  tliis  rlauso  in  l)rnrkets  if  tbo 
toplf-adiiiu:  jiHlf,^incnt  orotlicrdctcniii-  principiil  dcljtor  is  u  resident  of  tbo 
oatioa  of  court  of  Bpeciul  jurisdiction.     Stutc.     (Code  Civ.  Pro.,  i^  2007.) 


1244  FoTiMS  Relatiistg  to 

Wherefore  the  plaintiff  demands  judgment  against  the  de- 
fendants for  the  sum  of dollars  [stating  sum  remain- 
ing uncollected],  with  interest  thereupon  from  tlie 

day  of ,  18 — ,  and  for  costs  of  this  action.' 

M.  F.,  Attorney  for  Plaintiff, 
[Office  address.'] 
[Verification  as  in  forms  Nos.  151,  etc.] 


No.  1392. 

Complaint  by  Successor  of  Administrator,  etc.,  upon  his 
Oilicial  Bond,  after  Revocation  of  Letters. 

(Code  Civ.  Pro.,  §  2608.) 

As  in  last  form.  No.  1391,  to  [f],  and  from  thence  as  fol- 
lows :  That  on  the day  of ,  18 — ,  a  decree 

was  duly  made  by  the  surrogate  of county  revok- 
ing the  said  letters  of  administration  issued  to  said  A.  B. 

That  [in  and  by  said  decree  and]  on  the day  of 

,  18 — ,  the  plaintiff  was  duly  apj)ointed  the  admin- 
istrator of  the  goods,  etc.,  of  said  B.  C.  in  the  place  and 
stead  of  said  A.  B. 

That  [here  set  forth  cause  of  action]. 

Wherefore,  etc.  [jirayer  for  judgment].' 

M.  C,  Attorney  for  Plaintiff 
[Office  address.*] 

[Verification  as  in  forms  Nos.  151,  etc.] 


TITLE  III. 

Article  First. 


FORMS  RELATING  TO  THE  PROBATE  OF  A  WILL  AND  GRANT 
OF  LETTERS  THEREON. 

(Code  Civ.  Pro.,  Ch.  18,  Tit.  3,  Art.  1.) 

No.  1393.     Petition  for  the  probate  of  a  will. 

1394.     Order  that  citation  issue  for  probate  of  will. 


'  A  demand  upon  the  administrator  The   fact    that  the    administrator's 

to  perform  a  decree  for  payment  is  not  bond  has  not  been  approved  by  the 

necessary,   before  suing    the    surety,  surrogate,  is  no  defence  to  the  surety. 

(l\Iundorff  v.  Wangler,  44  N.  Y.  Super.  (Id.) 

Q^    495  \  See,  generally,  as  to  proof  m  such 


Surrogates'  Courts.  124a 

No    1395.     Citation  to  attend  probate  of  will. 

1396.  Notice  requiring  the  examination  of  all  the  subscribing  witnesses, 

etc.,  to  a  written  will. 

1397.  Answer  to  petition  for  probate  of  will. 

1398.  Deposition  of  subscribing  witnesses  to  will, 

1399.  Proof  of  handwriting,  in  case  of  death  or  absence  from  the  State, 

of  either  of  the  subscribing  witnesses. 

1400.  Interrogatories  to  be  annexed  to  commission  for  examination  of 

subscribing  witness  to  will. 

1401.  Proof  of  custody  of  the  will. 

1403.  Decree  admitting  will  to  probate  and  record. 

1403.  Petition  for  proof  of  lost  or  destroyed  will. 

1404.  Decree  admitting  lost  or  destroyed  will  to  probate. 

1405.  Decree  setting  aside  a  will. 

1406.  Surrogate's  certiticate  of  probate  of  a  will 

1407.  Affidavit  stating  ol)jections  to  granting  letters. 

1408.  Order  that  executor  appear  to  attend  inquiry. 

1409.  Order  that  objector  proceed  with  the  inquiry. 

1410.  Objections  to  issuing  of  letters  to  an  executor  named  in  the  wilL 

1411.  Decree  upon  objections. 

1412.  Letters  testamentary  upon  will. 
1418.  Bond  of  executor  or  administrator. 

1414.  Renunciation  by  executor. 

1415.  Retraction  of  renunciation  by  executor. 

1416.  Instrument  selecting  person  as  executor  under  a  power  contained 

in  a  will. 

1417.  Petition  for  order  requiring  an  executor  named  in  will  to  qualify 

or  renounce. 

1418.  Order  requiring  executor  named  in  will  to  qualify  or  renounce. 

1419.  Order  in  case  of  failure  of  executor  to  qualify,  pursuant  to  order 

(form  No.  1391). 

1420.  Petition  for  appointment  of  administrator,  with  the  will  annexed. 

1421.  Renunciation  by  person  having  prior  right  to  administer. 

1422.  Letters  of  administration,  with  the  will  annexed. 


No.  1393. 
Petition  for  the  Probate  of  a  Will. 

(Code  Civ.  Pro.,  §  2614.) 

To  the  Surrogate' s  Court  of  the  County  of 


The  petition  of  A.  B.  respectfully  shows,  that  heretofore, 

an  action,  id.;  and,  as  to  rules  relating  Beams  v.  Gould  (77  N.  Y.,  455;  alT'g 

thereto,  see  Kelly  v.  West  (80  N.  Y.,  S.  C,  8  Daly.  :i84),  Boyle  v.  St.  John 

139),  Harrison  v.  Clark  (87  N.  Y. ,  572),  (28  U\m,  454),  Estate  of  Scolield  (3  Civ. 

Scofield  v.  Churchill  (72  N.  Y.,  565),  Pro.,  323;  S.  C,  1  Deni..  190). 

Browning  v.  Vanderhoven  (4  Abl).  N.  '  See  note  2  to  form  No.  122. 

C,  166),  Brewster  v.  Balch  (41  N.  Y.  ^  See  notes  to  last  form  No.  1891. 

Super.  Ct.,  68),  Hood  v.  Hood  (85  N.  ••  See  note  2  to  form  No.  122. 
Y.,  561;   rev'g  S.   C,  19  Hun,  300), 


1246  Forms  Relating  to 

and  on  or  about  tlie day  of ,  18 — ,  C.  D. 

died  at  the  town  [or  city]  of ,   in  the  county  of 

,  being  at  the  time  of  bis  death  a  resident  of  the 

said  county  of [or  state  other  facts  showing  the 

surrogate's  jurisdiction],' 

That  said  C.  D.,  in  his  life-time,  made  and  executed  his 

will,  dated  on  the day  of ,  18—,  which  he 

left  unrevoked  at  his  death,  and  by  which  he  appointed 
your  petitioner  the  executor  [o?'  one  of  the  executors]  thereof 
[07'  by  which  lie  devised  (or  bequeathed)  to  your  petitioner 

certain  real  estate  {or  the  sum  of  ■ dollars  ;  or  state 

other  interest  in  or  claim  against  the  estate)]. 

That  said  C.  D,  left  him  surviving  P.  D.,  his  widow,  and 
O.  D.,  J.  D.  and  K.  L.,  wife  of  R.  L.,  his  [children]  and  only 

[heirs  at  law  and]  next  of  kin,'  all  of  whom  reside  at , 

and  all  of  whom  are  of  full  age,  except  the  said  J.  D.,  who 
is  an  infant  of  the  age  of years  and  upwards. 

That  said  will  relates  to  both  real  and  personal  property 
[or  relates  exclusively  to  real  {or  personal)  property].' 

Wherefore  your  petitioner  prays,  that  the  said  will  may 
be  proved,  and  that  the  said  P.  D.,  G.  D.,  J.  D.  and  K.  L. 
[or  that  the  said  widow,  heirs  at  law  and  next  of  kin  of 
said  B.  C],  may  be  cited  to  attend  the  probate  thereof.* 

Dated ,  18—. 

A.  B. 

[Verification  as  in  form  No.  52,] 

*  As  to  surrogfate's  jurisdiction,  see  *  Where  a  petition  for  probate  of  a 

Code  Civ.  Pro.,  §  2476,  and  see  as  to  will  gave  the  date  of  the  will,  stated 

cases  where  a  new  county  is  erected,  thatit  related  to  both  real  and  personal 

or  territory  is   transferred   from   one  estate,  and  was  signed  by  the  witnesses 

county  to  another,  §  2479  id.,  and  see,  named,  and  also  named  one  of  the  exe- 

also,  Matter  of  McGinness  (13  Misc.,  cutors  —  held,  that  the  description  of 

714),    Matter  of  Campbell   (88  Hun,  the  will  was  sufficient,  under  section 

374),  Washburn   v.  Coj.e  (144  N.  Y.,  2614  of  Code  Civ.  Pro.,  to  give  the  sur- 

^87),  Matter  of  Owens  (24  Civ.  Pro.  R.,  rogate  jurisdiction,  although  the  will 

256),  Hopkins  V.  Lane  (17  State  Rep.,  was   executed   in    duplicate   and   the 

277).  In  re  Plumb  (135  N.  Y.,  661).  petition  did  not  state  that  fact.    (Cross- 

'  Where  persons  to  be  cited  constitute  man  v.  Crossman,  95  N.  Y.,  145;  aflF'g 

a  class,  the  petitioner  must  set  forth  in  S.  C,  30  Hun,  385;  see  also,  S.  C,  2 

an  affidavit  the  name  of  each  of  them,  Dem.,  69.) 

unless  the  name,  or  part  of  the  name,  See  same  case  as  to  the  rules  regu- 

of  one  or  more  of  them  cannot,  after  lating  the  admission  to  probate  of  wills 

diligent  inquiry,    be   ascertained  by  executed  in  duplicate,  and  see,  further, 

him,  in  which  case  that  fact  must  be  as  to  contents  of  jietition  and  jurisdic- 

set  forth.     (Code  Civ.  Pro.,  §  2518).  tion  of  surrogate,  People  v.  Surrogate 

See,  also,  same  section,  that  a  peti-  of  Putnam  Co.   (21  Week.  Dig.,  498), 

tion,  duly  verified,  is  deemed  an  affi-  and  cases,  etc.,  cited  in  note  1,  above, 

davit  within  its  provisions.  An  instrument  may  be  admitted  to 

'  See  Code  Civ.  Pro,,  §  2615.  probate  which  simply  names  executors 


Surrogates'  Courts.  1247 

No.  1394. 
Order  that  Citation  Issue  for  Probate  of  Will. 

(Code  Civ.  Pro.,  §  2614.) 

At  a   surrogate's   court,   held   in   and   for  the   county  of 
,  at  the  surrogate's  office  in  the  [city]  of , 


on  the day  of ,  18 — . 

Present,  F.  W.,  Surrogate. 

On  reading  and  filing  the  petition  of  A.  B.,  dated , 

18 — ,  praying  that  the  will  of  C.  D.,  late  of  the  [city]  of 

,  in  the  county  of ,  deceased,  may  be  proved, 

and  that  a  citation  may  issue  to  the  proper  persons  to  attend 
the  probate  thereof : 

It  is  hereby  ordered,  on  motion  of ,  for  said  peti- 
tioner, that  a  citation  issue  to  the  proper  persons,  pursuant 
to  the  prayer  of  the  petition,  requiring  them  to  appear  in 

this  court  on  the day  of next,  at  o'clock 

in  the noon  of  that  day,  to  attend  the  probate  of 

the  said  will. 

F.  W.,  Surrogate. 


No.  1395. 
Citation  to  Attend  Probate  of  Will. 

(Code  Civ.  Pro.,  §2616.) 

The  People  of  the  State  of  New  York,  to  P.  D.,  G.  D.,  J.  B. 
and  K.  L. : ' 

Whereas,  A.  B.  has  applied  to  the  surrogate's  court  of 

the  county ,  for  the  proof  of  the  will  of  C.  D.,  late 

of  the  [city]  of ,  in  the  county  of  — '■ ,  deceased, 

which  said  will  relates  to  both  real  and  personal  property 

and  authorizes  them  to  sell  real  prop.  Pro.,  as  to  direction  of  citation,   in 

erty.     (Barber  v.  Barber,  17  Hun,  72.)  case  the  surrogate  cannot  ascertain,  to 

As  to  necessity  for  written  applica-  his  satisfaction,  whether  the  decedent 

tion,  see  Wright  v.  Fleming  (19  ITun,  left,  surviving  him,  any  person  who 

870).  would    bo    entitled    to    the    projierty 

'  It  is  no  longer  necessary  to  state  the  afTcrlcd   l)y  the  will    if   the  decedent 

residence  of  the  person  cited.     (Code  had  died  intestate. 

Civ.  Pro.,  §  2.'>19.)  As  to  aiipcarance  by  parties  not  cited 

See,  also,  section  2616,  Code  Civ.  see  section  2617,  id. 


1248  Forms  Relating  to 

[07'  exclusively  to  real  {or  personal)  property]  [and  is  a  nun- 
cupative will] : ' 

Therefore  you,  and  each  of  you,  are  cited  and  required 
to  appear  at  the  office  of  the  surrogate  of  the  county  of 

• ,  in  the  [city]  of ,  on  the day  of 

next,   at o'clock  in   the noon 

of  that  da}',  to  attend  the  i)robate  of  the  said  will.' 

In  testimony,  etc.  [as  in  form  No.  1345]. 

[L.  s.]  F.  AV.,  Surrogate  of County 

[or  GlerTi  of  the  Surrogate' s  Court  of County].'* 


No.  1396. 

Notice  Requiring  the  Examination  of  all  the  Subscribing 
Witnesses,  etc.,  to  a  Written  Will. 

(Code  Civ.  Pro.,  §2618.) 

[Title  of  proceeding.] 

Take  notice,  that  [the  undersigned]  M.   D.,  one  of  the 

heirs  at  law,  etc.,  of  C.  D.,  deceased,  contesting  the  probate 

of  the  written  instruinent  [or  instruments]  i)roi:)ounded  for 

probate  as  the  will  of  the  said  C.  D.,  dated  [respectively] 

on  the day  of ,  18 —  [and  on  the 

day  of ,  18 — ],  hereby  requires  the  examination  of 

all  the  subscribing  witnesses  to  said  will,  and  of  any  other 

witness  whose  testimony  the  surrogate  is  satisfied  may  be 

material.' 

Dated ,  18—. 

M.  D. 

[or  C.  H.,  Attorney  for  M.  D.]. 

[Office  address,  etc.*] 

'  This  fact  must  be  stated  when  the  Civ.  Pro.,  by  ch.  118  of  1894  ;  Matter 

case  requires  it.     (Id.,  §  2616.)  of  Greg-ory  (13  Misc.,  363). 

As   to   proof  of  service  of  citation,  ^  The  notice  may  be  filed  vyith  the 

see  section  2520  id.,  and  form  No.  1346  surrogate  at  any  time  before  the  proofs 

and  notes.  are  closed.     (Code  Civ.  Pro.,  §  2618.) 

"^  See  section  2509,  Code  Civ.  Pro.,  As  to  effect  of  filing,   see  same  sec- 

subd.  2,  and  Mauran  v.    Hawley   (2  tion. 

Dem.,  396),   as  to  power  of  clerk  to  See,  also,  Swenarton  v.  Hancock  (22 

sign  mandate,  Hun,  38  ;  afT'd,   84  N.  Y  ,   653,  upon 

As  to  persons  to  be  cited,  see  section  the  facts),  the  decision  on  affirmance 

2615,    Code   Civ.  Pro.,   and   Dyer  v.  is  more  fully  reported  in   9  Abb.  N. 

Erving    (2    Dem.,    160).      See,    also,  C,  326. 

amendment   to   §§  2615,  2617  of  Code  *  See  note  2  to  form  No.  122. 


Surrogates'  Courts.  •  1249 

No.  1397. 
Answer  to  Petition  for  Probate  of  Will. 

(Code  Civ.  Pro.,  §  2618.) 

[Title  of  proceeding.] 

The  answer  of  M.  D.,  the  sole  heir  at  law,  etc.,  of  C.  D., 
deceased,  to  the  petition  of herein,  dated 


18 — ,  respectfully  shows  [upon  information  and  belief]. 

[Here  insert  any  necessarj^  denials  of  the  allegations  of 
the  petition.     See  general  form  of  answer,  No.  140.] 

And  the  said  M.  J).,  further  answering  the  said  petition, 
alleges  : 

First.  That  the  said  paper  mentioned  in  said  petition, 
dated ,  18 — ,  purporting  to  be  his  last  \\\\\  and  tes- 
tament, is  not  the  last  will  and  testament  of  C.  D.,  deceased, 
and  that  the  alleged  execution  thereof  was  not  the  free,  un- 
constrained or  voluntary  act  of  said  C.  D. 

Second.  That  the  said  paper,  purporting  to  be  a  codicil  to 
said  alleged  last  will  and  testament,  is  not  a  codicil  to  said 
alleged  last  will,  and  that  the  alleged  execution  thereof  was 
not  the  free,  unconstrained  or  voluntary  act  of  said  C.  D. 

Third.  That  neither  at  the  time  the  said  papers  purport 
to  have  been  executed,  nor  at  any  time  when  they  were 
executed  [if  ever  executed],  was  the  said  C.  D.  of  sound 
mind,  memory  and  understanding. 

Fourth  That  neither  of  said  papers  was  subscribed,  pub- 
lished and  attested  as  and  for  a  last  will,  or  a  codicil,  in 
conformity  with  the  statute  in  such  case  made  and  pro- 
vided. 

Fifth.  That  the  said  papers  are,  and  each  of  them  is,  void 
as  a  testamentary  disposition  of  said  decedent's  property. 

Sixth.  That  the  papers  propounded  for  probate,  as  tlie 
will  of  said  C.  D.,  are  not  valid  as  such,  and  are,  and  each 
of  them  is,  illegal  and  void. 

Seventh.  That  the  contestant  is  the  [brother  and  sole 
heir  at  law  and  only  next  of  kin]  of  said  decedent,  and  is 
vested  by  law  with  the  title  to  his  estate,  both  real  and 
personal,  and  is  entitled  to  the  sole  and  exclusive  use  and 
possession  thereof. 
157 


1250  FOKMS    RELATl]!fG   TO 

AVherefore  the  above  named  M.  D.,  contestant,  prays  that 
this  proceeding  may  be  dismissed,  wifh  costs.' 

M.  F.,  Attorney  for  Contestant, 
[Office  address.'] 
[Verification  as  in  forms  Nos.  151,  etc/] 


No.  1398. 
Deposition  of  Suhscribing  Witnesses  to  Will. 

(Code  Civ.  Pro.,  i^  2G18.) 

STATE    OF    NEW    YORK,    SURROGATE'S    COURT, 
County  of . 


Present,  F.  H.  W.,  Surrogate. 


IiT  THE  Matter  of  Provii^g  the 
Last  Will  and  Testament  of 
,  Deceased. 

County  of ,  ss.: 

A.  B.,  of  the  [city]  of ,  in  the  county  of , 

and  J.  T.,  of  the  [city]  of ,  in  the  county  of , 

being  first  duly  sworn  in  open  court,  do  depose  and  say,  and 
each  for  himself  deposeth  and  saith,  that  he  is  a  subscrib- 
ing witness  to  the  instrument  now  shown  to  him,  purport- 
ing to  be  the  last  will  and  testament  of  C.  D.,  late  of  the 
[citj^]  of ,  in  the  county  of . 

That  the  said  C.  D.  did,  in  the  presence  of  this  deponent 
subscribe  his  name  \or  acknow^ledge  to  this  deponent  his 
subscription  to  have  been  made],  at.  the  end  of  the  instru- 
ment which  is  now  shown  and  exhibited  to  this  deponent 
as  aforesaid,  and  which  purj^orts  to  be  the  last  will  and  tes- 

'  See  as  to  pleadings  in  surrogate's  tte  proceeding.     (Code  Civ.  Pro.,  § 

courts,  section  2533  of  Code  Civ,  Pro.  2534.)    See,  also,  as  to  form  of  verifi- 

*  See  note  2  to  form  No.  122.  cation,  Matter  of  application,  etc.,  of 

'  The  provisions  of  sections  523, 524,  Macaulay  (94  X.  Y.,  574);  as  to  verifi- 

525  and  526  of  the  Code  Civ.  Pro.,  cation  hy  attornej-,  see  Moorhouse  v. 

apply  to  a  verification  made  pursuant  Hutchinson  (2  Dem..  429),  Estate  of 

to  chapter  eighteenth  (id  ),  and  to  the  Lamar  (20  Daily  Reg.,  No.  113). 

petition   or  other    paper   .so  verified,  See,   further,   as  to  verification  of 

where  they  can  be  so  applied  in  sub-  pleading,  §  2533,  Code  Civ.  Pro. 
stance,  without  regard  to  the  form  of 


Surrogates'  Courts.  1251 

tament  of  the  said  J.  F.,  aud  which  bears  date  on  the 
day  of ,  in  the  year  of  our  Lord  one  thou- 
sand eio'ht  hundred  and . 


And  this  deponent  further  saith,  that  the  said  C.  D.,  the 
said  testator,  did,  at  the  same  time  of  subscribing  his  name 
as  aforesaid  at  the  end  of  the  said  will  \or  at. the  time  of 
making  said  acknowledgment],  declare  the  said  instrument 
so  subscribed,  and  now  exhibited,  to  be  his  last  will  and 
testament ;  and  this  deponent  did  thereupon  subscribe  his 
name  at  the  end  of  the  said  will,  as  an  attesting  witness 
thereto,  in  the  presence  of,  and  at  the  request  of,  the  said 
testator. 

And  this  deponent  further  saith,  that,  at  the  said  time 
when  the  said  testator  subscribed  his  name  to  tiie  said  last 
will  as  aforesaid  \or  made  said  acknowledgment],  and  at 
the  time  of  the  deponent  subscribing  his  name  as  an  attest- 
ing witness  thereto  as  aforesaid,  the  said  C.  D.  was  of  sound 
mind  and  memory,  of  fall  age  to  execute  a  will,  of  [real  or] 

personal  property,  to  wit :  of  the  age  of  upwards  of 

years,  and  was  not  under  any  restraint  to  the  knowledge, 
information  or  belief  of  this  deponent.  And  further  these 
deponents  say  not.' 

T.  B. 
J.  F. 

Subscribed  and  sworn  this day  \ 

of ,  18 — ,  before  me. 


-,  Surrogate. 


No.  1399. 

Proof  of  Handwriting  in  Case  of  Deatli  or  Al>sence  from  the 
State,  etc.,  of  either  of  the  Suhscribing  Witnesses. 

(Code  Civ.  Pro.,  §§  2619,  2620.) 

[Title  of  proceeding.] 
A.  B.,  of ,  being  duly  sworn,  says,  that  G.  H.,  one 

'  The  fitatute  doeH  not  confine  the  Code  Civ.  Pro.,  see  above  cited  case, 
proponent  of  a  will  to  the  tet^timony  and  Matter  of  will  of  Cottrell  (95  N. 
of  the  Bubscribing- witneaaeH,  nor  com-  Y.,  329),  Rolla  v.  Wrif,--!!!  (2  Dern.. 
pel  him  to  examine  them  as  to  le.sta-  48-).  Sec,  alno,  aiiK'ndiiuMils  to  nee- 
tor's  testamentary  capacity.  (Whit-  tion  2620.  l)y  ch.  CdS  of  haws  of  IH^S  ; 
field  V.  Whitfield,  19  We<'k.  Ui{r.,386).  and  see  Matter  of  Clark  (Tf)  Hun,  471), 

Ah  to  want  of  lecollection,  etc.,  of  cited  in  note  2  to  form  No.  13'.t9. 
Bubscribing-  witness  under  section  2620 


1252  Forms  Relating  Tb 

of  the  subscribing  witnesses  to  the  instrument  in  writing, 
purporting  to  be  the  will  of  C.  D.,  late  of ,  de- 
ceased, dated ,  18—,  now  shown  to  defendant,  is 

dead  [_or  is  absent  from  the  State,  or  is  a  lunatic,  or  cannot, 
after  due  diligence,  be  found  within  the  State  or  elsewhere, 
as  appears  from  the  annexed  affidavit  of  G.  M.]. 

[And  deponent  further  says,  that  the  testimony  of  said 
G.  H.  cannot,  with  due  diligence  be  obtained  by  a  commis- 
sion for  the  following  reasons  (state  same).'] 

And  deponent  further  says,  that  he  is  well  acquainted 

with  said  G.  H.  [who  formerly  resided  at in  the 

State  of  New  York,  but  now  resides  at,  etc.,  in  the  Stnte  of 

],  and  with  the  manner  and  style  of  his  handwriting, 

having  often  seen  him  write,  and  that  he  verily  believes 
that  the  signature,  "  G.  H.,"  signed  as  a  witness  to  said 
instrument,  in  writing,  is  the  true  and  genuine  handwriting 

and  signature  of  the  said  G.  H.' 

A.  B. 
[Jurat  as  in  last  form  No.  1398.] 


No.  1400. 

Interrogatories  to  be  Annexed  to  Commission  for  Examina- 
tion of  Subscribing  Witness  to  Will. 

(Code  Civ.  Pro.,  g  2620.) 

[Title  of  proceeding.] 

Interrogatories  to  be  administered  to  I.   J.  and  N.  M., 
witnesses   to   be   produced,    sworn    and    examined   before 

Pt.  AV.,  commissioner,  in  the  [city]  of ,  in  the  [State] 

of ,  in  the  matter  of  proving  the  will  of  C.  D.,  late  of 

tlie  [city]  of ,  now  pending  before  the  surrogate  of 

the  county  of ,  under  and  in  pursuance  of  the  com- 
mission hereto  annexed. 

»  See  section  2620,  Code  Civ.  Pro.  scribing  witnesses,  the  examination  of 

'  These  facts,  stated  in  the  aflidavit,  both  is  essential  if  both  are  accessible 

may  be  proved  by  one  or  more  affida-  (Code   Civ.  Pro.,  2G18,  2619.    2620). 

vits,  in  manner  similar  to  above.  (Id. ;  per  Rollms,  surrogate.) 

An  application  for  the  probate  of  a  Section  2620  of  Code  Civ.  Pro.  does 
will,  one  of  two  subscribing  witnesses  not,  as  amended  by  ch.  508  ot  Laws  ot 
to  which  has  not  been  produced,  will  1888,  require  the  evidence  of  a  sub- 
be  refu.sed  where  proponents  neither  scribing  witness  to  the  will  absent 
take  steps  to  examine  such  witness,  from  the  State,  to  be  taken  before  the 
orally  or  by  commission,  nor  establish  probate  thereof  unless  demanded  by  a 
satisfactorily  their  inability  to  do  so.  party  to  the  proceeding.  Matter  ot 
(Graber  v.  Haaz,  2  Dem.,  216.)  Clark  (75  Hun,  471).     See,  also,  Upton 

"Now,  where  there  are  only  two  sub-  v.  Bernstein  (76  Hun,  516). 


Surrogates'  Courts.  1^53 

First  interrogatory.  What  is  your  name,  age,  residence 
and  occupation  ? 

Second  interrogatory.  Were  you  acquainted  with  C,  D., 

late  of  the  [city]  of ,  deceased  ?     State  how  long, 

and  how  intimately,  you  were  acquainted  with  liini,  and 
wlien  and  where  he  died  ? 

Third  interrogatory.  Look  at  the  instrument,  in  writing 

[hereunto  annexed],  bearing  date  the day  of , 

in  the  year  18 — ,  purporting  to  be  the  will  of  the  said  C.  D., 
and  say  whether  or  not  you  were  present  at  the  time  of  the 
execution  of  the  same?  If  so,  wdiere?  State  23articularly 
wiiat  took  place  at  the  execution  of  the  said  instrument  % 
Who  w^as  present  %  What  was  said  and  done,  and  by 
whom  % 

Fourtli  interrogatory.  Was  anything  said  in  regard  to 
the  witnessing  of  the  said  instrument,  and  by  whom,  and 
i^\iio  were  present  \ 

Fifth  interrogatory.  What  was  done  with  regard  to  the 
witnessing  the  execution  of  the  said  instrument,  and  in 
whose  presence  ? 

Sixth  interrogatory.  What  was  the  condition  of  the  said 

C.  D.,  as  regards  the  soundness  or  unsoundness  of  his  mind, 
at  the  time  the  said  instrument  was  executed  % 

Seventh  iriierrogatory.  Was  the  said  C.  D.  under  any  re- 
straint at  the  time  of  the  execution  of  tlie  said  instrument? 
EigJith  interrogatory.   What  was  the  age  of  the  said  C. 

D.  at  the  time  of  the  execution  of  said  instrument  ? 
Ninth  interrogatory.  Do  you  know  of  any  other  matter 

or  tiling  relating  to  the  execution  of  the  said  instrument, 
and  the  condition  of  the  mind  of  said  C.  D.  at  the  time  of 
its  execution?     Answer  fully  and  particularly.* 

M.  N.,  Attorney  for 

A.  B.,  Proponent  of  Will. 
[Office  address.'] 

I  hereby  allow  the  foregoing  interrogatories. 

Dated ,  18—. 

F.  W.,  Surrogate. 


'  For  generil  form  of  cross-inteiTOg-  sion,  see  form  No.  882.  Tlio  order  for 
atories  to  be  administered,  cte. ,  see  issiiiiij,'  (•(uiuiiissioii  (T^o.  Wl)  iii.iy  In- 
form No.  384.     For  form  of  comiiiis-     adiipted  lo  lliis  ciise  :  and  see,  further. 


1254  Forms  Relating  to 

No.  1401. 
Proof  of  Custody  of  the  Will. 

(Code  Civ.  Pro.,  §  2622.) 

[Title  of  proceeding.  ] 
County  of ,  ss.: 

P.  T.,  of ,  being  duly  sworn  and  examined  before 

A.  W.  B.,  surrogate  of  the  county  of ,  doth  depose 

and  say,  that  he  received  the  instrument,  in  writing,  bear- 
ing date  the day  of ,  18 — ,  purporting  to 

be  the  will  of  J.  T.,  deceased,  from  the  said  J.  T.,  immedi- 
ately after  he  executed  the  same. 

That  the  said  instrument  remained  in  the  custody  of  this 
deponent  until  he  brought  the  same  to  the  office  of  the  sur- 
rogate of  the  county  of ,  w^here  he  deposited  the 

same  for  probate,  and  that,  whilst  the  said  instrument  re- 
mained in  the  custody  of  this  deponent,   the  same  was, 

in  no  respect,  altered  or  changed. 

P.  T. 
[Jurat  as  in  form  No.  1398.] 

Another  Form. 

[Title  of  proceeding.] 
County  of ,  ss.  : 

E.  S.  and  P.  F.,  both  of ,  being  severally  duly 

sworn  and  examined  before  A.  W.  B.,  surrogate  of  the 

county  of ,  do  depose  and  say  as  follows :  And 

the  said  E.  S.,  for  himself,  doth  depose  and  say,  that  at  the 
request  of  J.  T.,  now  deceased,  he  drew  and  wrote  the  instru- 
ment in  writing  now  produced  and  shown  to  this  deponent, 

bearing  date  the day  of ,  18—,  purporting 

to  be  the  will  of  the  said  J.  T.,  deceased,  and  attended  to  the 
execution  of  the  same. 


as  to  proceedings  relating'  to  commis-  testimony  and   commission   in   surro- 

sions,  p.  284  eiseg.,  and  notes  to  forms,  gate's   office,    amendment    to    section 

By  section  2538  of  Code  Civ.  Pro.,  the  2620   Code   Civ.  Pro.,  by   ch.  508   of 

provisions   of  article    second   of  title  Laws  of  1888. 

third  of  chapter  ninth  (id.)  are  made  For  form  of  direct   interrogatories, 

applicable  to  surrogates'  courts  and  to  where  the  proViate  is  not  contested,  see 

the  proceedings  therein,  so  far  as  they  Dayton  on  Surrogates  (ed.  of  1855,  p.- 

can  be  applied  to  the  substance  and  xi,  appendix). 

subject  matter  of  a  proceeding  without  '  See  note  2  to  form  No.  122. 

regard  to   its   form.     See  as  to  filing 


Surrogates'  Courts.  1255 

That  he  received  the  said  instrument  from  the  said  J.  T. 
immediately  after  the  execution  thereof,  and  that  the  same 

remained  in  tlie  custod}'  of  this  deponent  until  the 

day  of last  past,  when  he  handed  the  same  to  P.  F., 

one  of  the  executors  therein  named,  to  take  charge  thereof. 

And  the  said  P.  F.,  for  himself,  doth  depose  and  say,  that 
he  received  the  said  instrument  from  the  said  E.  S.  on  the 
day  of last  past,  as  above  stated. 

That  the  same  remained  in  his  custody  until  the 

day  of last  past,  when  he  brought  the  same  to  the 

office  of  the  surrogate  of  the  county  of ,  where  he 

deposited  the  same  for  probate. 

And  these  deponents  further  say,  that  whilst  the  said 
instrument  remained  in  their  respective  custody,  the  same 
was,  in  no  respect,  altered  or  changed.' 

E.  S. 
P.  T. 

[Jurat  as  in  form  No.  1398.] 


No.  1402. 
Decree  Admitting  Will  to  Probate  and  Record. 

(Code  Civ.  Pro.,  ^  2623.) 

[At,  etc.,  as  in  form  No.  1394.] 

[Title  of  proceeding.] 

Satisfactory  proof  having  been  made  of  the  due  service  of 
the  citation  heretofore  issued  in  this  matter,  requiring  the 

proper  persons  to  appear  in  this  court  on  the day 

of ,  18 — ,  and  attend  the  probate  of  the  will  of  C. 

D.,  late  of  the  [city]  of ,  deceased,  bearing  date  on 

the day  of ,  18 — ,  and  F.  G.,  the  executor 

named  in  the  said  will,  having  appeared  by  M.  C,  his  at- 
torney and  counsel  in  support  of  the  probate  of  the  same 
[and  P.  D.,  the  widow  of  said  deceased,  having  ai)i)eared  in 

person  and  by ,  her  attorney  and  counsel,  in  oi)po- 

sition  thereto,  and  contested  the  probate  of  the  same  ;  and 
.  the  special  guardian  of  A.  D.  and  G.  D.,  minors, 

'  These  ufliduvits  may  be  reiiuired  Ite  made  hy  the  person  ])reMeiitin/;  the 
by  the  .sunogute  in  his  discretion,  and  will  for  probate.  (Code  Civ.  Pro.,  § 
he  may  also  require  a  like  aflidavit  to     2022.) 


1256  FOKMS  Relating  to 

two  of  the  heirs  and  next  of  kin  of  the  said  deceased,  hav- 
ing also  appeared]  ;  and  no  other  parties  or  jDersons  liaving 
appeared  in  the  said  matter,  and  tlie  said  matter  having 
been  duly  heard  [and  adjourned  from  day  to  day  until  this 
day],  [^^J  and  after  hearing  the  proofs  and  allegations  of  the 

said  F.  G.  [and  of  the  said  P.  D.]  [and  the  said , 

special  guardian  as  aforesaid,  having  submitted  the  rights 
and  interests  of  the  said  minors  to  the  care  and  discretion 
of  this  court],  and  due  deliberation  having  been  thereupon 
had,  and  it  appearing,  upon  the  proof  tnkon.  that  the  said 
will  was  duly  executed  ;  that  the  testator,  at  the  time  of 
executing  the  same,  was,  in  all  respects,  comx^etent  to  make 
a  will,  and  not  under  restraint  [and  the  surrogate  being 
satisfied  of  its  genuineness  and  the  validity  of  its  execu- 
tion] ; '  and,  on  motion  of  ■ ,  in  behalf  of  the  said 

executor : 

It  is  herebj^  adjudged  and  decreed,  and  the  surrogate  ot 

the  county  of ,  by  virtue  of  the  i^ower  and  authority 

in  him  vested,  doth  adjudge  and  decree,  that  the  said  will 
was  duly  executed ;  that  the  same  is  genuine  and  valid  ; 
that  the  said  will,  and  the  proofs  and  examinations  taken 
in  respect  to  the  same,  be  recorded  ;  and  that  the  said  will 
be  admitted  to  probate  as  a  will  valid  to  pass  real  [and  per- 
sonal] propertj^. 

[And having  expressly  put  in  issue  before  the 

surrogate  the  validity  construction  and  effect  of  the  follow- 
ing clause  of  said  will,  to  Avit  (insert  same),  it  is  further  ad- 
judged and  decreed,  that  the  true  construction  and  legal 
effect  of  the  above  mentioned  clause  of  said  will  is  (state 
construction)/] 

And  it  is  further  ordered,  adjudged  and  decreed,  that  the 
objections  to  the  i:>robate  of  said  will,  not  hereinbefore  dis- 
posed of,  be,  and  the  same  are  hereby,  dismissed  as  un- 
proven  and  unsustained. 

And  it  is  further  ordered,  that  letters  testamentary  of 
said  will  be,  and  they  are  hereby,  granted  to  said  F.  G. 
upon  his  taking  the  required  oath/ 

'  This  clause  was  formerly  inserted,  provision  is  contained  in  section  2622, 

pursuant  to  section  17  of  ch.  460  of  Code  Civ.  Pro. 
Laws  of  1837,  which  was  repealed  by        *  See  section  2624,  Code  Civ.  Pro. 
ch.  245  of  Laws  of  1880;  but  the  same        ^  As  to  effect  of  decree  in  case  of  wil] 


SUKBOGATES'    CoURTS.  1257 

And  it  is  further  ordered,  that  [insert  allowances  of  costs, 
etc.,  to  parties,  as  to  which  see  sections  2559-2562,  Code 
Civil  Procedure]. 

F.  W.,  Surrogate  of County, 


No.  1403. 
Petition  for  Proof  of  Lost  or  Destroyed  Will. 

(Code  Civ.  Pro.,  §  2621.) 

To  the  Surrogate' s  Court  of County  : 

The  petition  of  M.  B.,  of ,  respectfully  shows  [fol- 
low substantially  the  allegations  of  complaints  Nos.  856,  and 
857,  and  conclude  with  prayer  as  follows]  : 

Your  petitioner,  therefore,  prays,  that  said  will  may  be 
adjudged  and  decreed  by  said  court  to  be  the  will  of  the 
said  M.  F.,  and  may  be  admitted  to  probate  and  recorded 
accordingly,  as  a  will  relating  to  both  real  and  personal 
property  [or  exclusively  to  real  {or  to  personal)  property], 
and  that  letters  testamentary  or  of  administration,  with  the 
will  annexed,  may  be  issued  thereupon  by  said  court,  in 
the  same  manner  and  with  like  eifect  as  upon  a  will  duly 
proved  in  said  court.* 

M.  B. 

[Verification  as  in  form  No.  52.] 


No.  1404. 
Decree  Admitting  Lost  or  Destroyed  Will  to  Probate. 

(Code  Civ.  Pro.,  §  2621.) 

[At,  etc.,  as  in  form  No.  1394. J 
[Title  of  proceeding.] 
Upon  reading  and  filing  proof  of  due  service  of  the  cita- 

of  personal  property,  see  section  2626,  '  See  notes  to  forms   Nos.  856,  Q')l 

Codti  Civ.  Pro.;  in  case  of  will  of  real  and  858  ;  and  nee,  alno,  In  re  RnHsell 

property,  pee  section  2627  (id.).  (33  Hun,  271),  In  re  Hiinp.son  (56  How. 

Where  the  will  names  one  or  more  Pr.,    125),    Collif,'-an    v.    McKei-nan   (2 

persons  to  Vje   executor   or   executors  Dem.,  421),  Matter  of  Colli^'un  ('>  Civ. 

thereof,  upon  a  conting-ency,  the  snr-  Pro.,  198),  Hatili  v.  Sifrmnn  (1  Dem., 

ro^rate  mu.st  inquire  into  the  facts,  and  519),   Matter  of  Ruser  (6  iii.,  31  ;    liJ 

if  the  conting^ency  has  hai)pened  that  State  Rep.,  791),   Matter  of  Soule  (-10 

fact   must    be    recited   in   the  decree.  State  Rep.,  600.) 
(Code  Civ.  Pro.,  §  2636.) 

i:>8 


1258  Forms  Relating  to 

tion  issued  herein  upon  the  persons  to  whom  the  same  was 
directed,  to  wit :  upon  the  heirs  at  law  and  next  of  kin  of 
M.  F.,  requiring  said  person  to  appear  in  this  court  on  the 

day  of ,  18 — ,  and  attend  the  probnte  of 

the  will  of  M.  F.,  late  of  the  [cityj  of ,  deceased, 

bearing  date  on,  etc.,  and  [recite  appearances,  etc.,  as  in 
form  No.  1402,  stating  whether  or  not  the  probate  wns  con- 
tested], and  on  motion  of  T.  F.,  counsel  for  the  petitioner 
herein  [and  after  hearing  W.  B.,  counsel  for,  etc.] : 

It  is  hereby  ordered,  that  the  will  of  M.  F.,  as  set  forth  in 

the  petition  in  this  proceeding,  bearing  date ,  18 — , 

and  of  whicli  the  following  is  a  copy,  to  wit  [insert  copy 
of  will]  [or  the  substance  of  which  is  as  follows  (state  same), 
it  having  appeared  that  said  will  was  in  existence  at  tlie 
time  of  the  death  of  said  testator  [or  was  fraudulently  de- 
stroyed in  the  life-time  of  said  testator],  and  its  provisions 
having  been  clearly  and  distinctly  x^roved  by  [name  themj 

two  credible  witnesses  [or  by ,  one  credible  witness 

and  by  a  correct  copy  {or  draft)  thereof],'  and  that  the  said 
will  was  duly  executed,  and  that  the  said  testator,  at  the 
time  of  executing  it,  was,  in  all  respects,  competent  to  make 
a  will  of  [real  and]  personal  property,  and  not  under  re- 
straint, be  and  the  same  is  hereby  admitted  to  probate  as  a 
will  valid,  to  pass  real  property  [or  personal  property]  [or 
both  real  and  personal  property]. 

Add  further  provisions  of  decree,  form  No.  1402,  as  may 

be  necessary." 

F.  W.,  Surrogate  of County. 


No.  1405. 
Decree  Setting  Aside  a  Will, 

(Code  Civ.  Pro.,  g  2625.) 

As  in  form  No.  1402  to  [*1,  and  from  thence  as  follows : 

And  the  instrument  in  writing  bearing  date  the 

day  of ,  18 — ,  purporting  to  be  the  will  of  the  said 

C.  D.,  deceased,  having  been  produced,  and  M.  N.  and  P.  R., 
two  of  the  subscribing  witnesses  to  the  said  instrument, 

'  See  Code  Civ.  Pro.,  g  1865.  '  See  notes  and  cases  referred  to  ia 

note  to  form  No.  1403. 


Surrogates'  Courts.  1259 

having  been  duly  examined  touching  the  facts  and  circum- 
stances attesting  the  execution  thereof,  and  the  competency 
of  the  said  C.  D.  to  execute  the  same  as  and  for  his  will,  and 
after  hearing  the  proofs  and  allegations  of  the  said  F.  G. 
and  of  the  said  P.  D.;  and  the  said ,  sj^ecial  guard- 
ian as  aforesaid,  having  submitted  the  rights  and  interests 
of  the  said  minors  to  the  care  and  discretion  of  this  court, 
and  due  deliberation  having  been  thereupon  had,  and  on 
motion  of  Mr. ,  of  counsel  for  the  said  P.  D.: 

It  is  adjudged   and  decreed,   and  the  surrogate  of   the 

county  of ,  by  virtue  of  the  power  and  autlwrity 

in  him  vested,  doth  adjudge  and  decree,  that  the  said  instru- 
ment, in  writing,  was  not  executed  and  attested  in  the  man- 
ner prescribed  by  law  for  the  execution  and  attestation  of 
wills. 

And  further,  it  is  declared,  and  the  surrogate  aforesaid, 
by  virtue  of  the  power  and  authority  aforesaid,  doth  de- 
clare, that  the  said  instrument  is  utterly  null  and  void  and 
invalid,  as  or  for  the  will  of  the  said  C.  D.,  deceased. 

And  further,  the  said  surrogate  doth  order,  that  the  costs 
of  all  the  parties  to  this  proceeding,  and  the  fees  and  ex- 
penses thereof,  be  paid  out  of  the  estate  of  the  said  de- 
ceased, to  wit  [state  amounts  allowed  respectively].' 


No.  1406. 
Surrogate's  Certificate  of  Probate  of  a  Will. 

(Code  Civ.  Pro.,  8  2629.) 


State  of  New  York, 
Surrogate' s  Court — Albany  County. 


I,  F.  W.,  surrogate  [or  clerk  of  the  surrogate's  court]  of 
county,  do  hereby  certify,  that  the  within  [or  an- 


nexed] instrument  \or  instruments],  bearing  date  [respect- 
ively]   ,  18 —  [and ,  18 — ]  [or  exemplilied 

copy  of  a  will,  or  statement  of  the  tenor  of  a  will]"  was  \or 
were],  upon  due  proof,  admitted  to  probate  by  said  snrro- 

'  See   as   to  costs,   etc.,  Code   Civ.  was  admitted   without   production  of 

Pro.,  §§  2556-2562  ;  Matter  of  Bender  an  orig'inal  written  will.     (Co<ie  Civ. 

(86  Hun,  590).  Pio.,  §  2629.) 

*  Insert  thi.s  clause  in  ciiwe  thu  will 


1260  FoKMS  Relating  to 

gate's  court,  on  the  day  of ,  18—,  as  the 

M'ill  of  A.  B.,  late  of ,  in  the  county  of , 

deceased,  and  as  valid  to  pass  both  real  and  personal  [or 
real,  or  personal]  property. 

And  I  further  certify,  that  the  said  will  [and  the  proof 
taken  in  relation  to  the  execution  thereof]  are  recorded  in 

the  surrogate's  office  of  the  county  of ,  in  book  of 

wills,  vol.  — ,  at  page  — ,  kept  in  my  office  for  that  purpose. 

In  witness  whereof,  I  have  hereunto  set  my  hand  and  the 

seal  of  said  court,  on  this day  of ,  18 — .' 

[l.  s.]                      F.  W.,  Surrogate 
[or  QlerTc  of  Surrogate' s  Court  of County], 


No.  1407. 
Affidavit  Stating  Objections  to  Granting  Letters. 

(Code  Civ.  Pro.,  §  2636.) 

[Title  of  proceeding.] 
County,  ss.: 


A.  B.,  of ,  being  duly  sworn,  says,  that  he  is  a 

creditor  of  A.  B.,  whose  will  is  offered  for  probate  in  the 
above  entitled  proceeding,  said  A.  B.  having  been  indebted 
to  him  at  the  time  of  his  death  upon  [state  nature  of  indebt- 
edness] [or  show  other  interest  in  estate]. 

That  deponent  objects  to  the  granting  of  letters  testa- 
mentary upon  said  will  to the  executor  [or  one  of 

the  executors]  named  in  said  will. 

That  the  following  are  the  legal  objections  made  by  de- 
ponent to  such  appointment,  to  wit  [state  same],  and  that 
he  believes  the  foregoing  statement  of  said  objections  to  be 
true. 

[Or  that  deponent  is  advised  by  T.  P.,  his  counsel,  who 
resides  at ,  and  believes  that  there  are  legal  objec- 
tions to  such  aiDpointment,  and  that  he  intends  to  file  a 
specific  statement  of  the  same,  verified  as  required  by  law.'] 

E.  F. 

[Jurat  as  in  form  No.  46.] 


'  As  to  effect  of  this  certificate  as    davit,  see  sections  2637,   2638,   Code 
evidence,  see  Code  Civ.  Pro.,  ^  2629.     Civ.  Pro. 

'  As  to  proceedings  upon  filing  affi-        See,  also,  as  to  objections,  Estate  ot 


SUEKOGATES'    CoURTS.  1261 

No.  1408. 
Order  that  Executor  Appear  to  Attend  Inquiry. 

(Code  Civ.  Pro.,  §2637.) 

[At,  etc.,  as  in  form  No.  1394.] 
[Title  of  proceeding.] 

On  reading  and  filing  the  objections  of  P.  D.  [a  legatee 

under  the  will]  of  C.  D.,  late  of ,  deceased,  against 

the  granting  of  letters    testamentary  of   the  said  will  to 
,  one  of  the  executors  therein  named  : 

It  is  ordered,  that  the  said appear  before  the 

surrogate  of  the  county  of ,  at  his  office  in  the  [city] 

of ,  on  the day  of  ,  18 — ,  at  ■ 

o'  clock  in  the noon  of  that  day,  and  attend  the  in- 
quiry into  the  said  objections. 

F.  W,,  Surrogate. 


No.  1409. 
Order  that  Objector  Proceed  with  the  Inquiry. 

(Code  Civ.  Pro.,  §  2637.) 

[At,  etc.,  as  in  form  No.  1394.]  * 

[Title  of  proceeding.] 
P.  D.  [a  legatee  under  the  will]  of  C.  D.,  late  of 


deceased,  having  filed   objections  against  the  granting  of 

letters  testamentary  of  the  said  will  to ,  one  of  the 

executors  therein  named : 

It  is  ordered,  on  motion,  etc.,  that  the  said  P.  D.  appear 

before  the  surrogate  of  the  county  of ,  at  his  office 

in  the  [city]  of ,  on  the day  of , 

18—,  at o'clock  in  the noon  of  that  day, 

and  proceed  with  the  inquiry  into  the  said  objections. 

P.  W.,  Surrogate. 

Demarest  (1  Civ.  Pro.  R.,  302),  Estate  tended  that  the  duties  of  an  executor 

of  Vernon  (1  Civ.  Pro.  R.,  304).  should   Iw  discliarirfd   by  the  ihtsou 

It  is  not  necessary  that  the  appoint-  named,  is  sufficient  to  conslifiitt^  him 

ment  of  an  executor  should  be  made  an  executor.     (In  re  Blancau,  4  Redf., 

in  so  many  words.     Any  provision  in  151.) 
the  will  showing  that  the  testator  in- 


1262  Forms  Relating  to 

No.  1410. 

Objections  to  Issuing  of  Letters  to  an  Executor  Named  in 

the  Win. 

(Code  Civ.  Pro.,  §  2636.) 

[Title  of  proceeding.  J 
To ,  Surrogate  of  the  County  of ; 

The  objections  oi'  P.  D.,  ol' ,  a  legatee  under  the 

will  of  C.  D.,  late  of ,  deceased,  against  the  granting 

of  letters  testamentary  of  tlie  said  will  to ,  one  of 

the  executors  named  therein. 

First  objection.  That  the  circumstances  of  said 

are  such,  that  they  do  not  afford  adequate  security  to  the 
creditors,  or  persons  interested  in  the  estate  of  said  C.  D., 
for  the  due  administration  of  the  said  ee^tate '  [that  he  has 

recently  failed   in   his    business   in   the  (city)  of 

and  become  insolvent,  and  that  the  debts  owing  by  the  said 

greatly  exceed  the  amount  of  property  belonging 

to  him]. 

Second  objection.  That  said is  not  a  lesident  of 

the  State  of  New  York,  but  resides  at ,  in  the  [State] 

of ,  and  has  no  office  within  the  State  for  the  trans- 
action of  business  in  person,  and  that  said  will  contains  no 
express  provision,  to  the  effect  that  he  may  act,  as  such 
executor,  without  giving  security.^ 

Third  objection.  That  the  said  is  incomj^etent 

to  execute  the  duties  of  the  trust,  as  executor  of  said  will, 
by  reason  of  improvidence. 

Dated ,  18—. 

P.  D.  [or  M.  G.,  Attorney  for  P.  D.]. 
[Office  address.'] 
CouxTY,  ss. : 

,  of ,  being  duly  sworn,  says,  that  he  is 

[the  attorney  for]  the  person  named  as  objector  in  the  fore- 

'  See  section  2638,  Code  Civ.  Pro.,  (22  Hun,  9^  Estate  of  Demarest  (1  Civ- 

subd.  1;  Martin  v.  Duke  (5  Rcdf.,  597),  Pro.  R.,  302),  Estote  of  Yernon  (1  Civ. 

Ballard  V.  Charlesworth  fl  Dem.,  501),  Pro.  304),  Estate  of  Sohn  (1  Civ.  Pro. 

Hovey  v.  McLean  (t  Bern.,  396),  Mor-  P.,  373). 

gan  v.  Morsran  (3  Dem.,  612).  ^  See  note  2  to  form  No.  122. 

5  See  suhd.  2  of  section  2638,  Code  See,  as  to  grounds  of  incompetency, 

Civ.  Pro.,andVanWyckv.VanWyck  3  R.  S.  (7th  ed.),  2289,  §§  3,  4;  as  to 


Surrogates'  Courts.  1263 

going  statement  of  objections,  subscribed  by  him  ;  that  he 
believes  said  statement  to  be  true. 

P.  D.  [or  M.  G.]. 
[Jurat  as  in  form  No.  46.] 


No.  1411. 
Decree  upou  Objections. 

(Code  Civ.  Pro.,  §  2637.) 
[At,  etc.,  as  in  form  No.  1894.] 
[Title  of  proceeding.] 

P.  D.  [a  legatee  under  the  will]  of  C.  D.,  late  of  the  [city] 

of ,  deceased,  having  duly  filed  his  objections  against 

the  granting  of  letters  testamentary  of  the  said  will  to 
,  one  of  the  executors  named  therein,  and  the  sur- 
rogate having  inquired  into  the  said  objections,  and  due 
X)roof  having  been  taken,  and  after  hearing  counsel  for  the 
respective  parties,  it  is  adjudged  and  decreed,  and  the  surro- 
gate, by  virtue  of  the  authority  in  him  vested,  doth  adjudge 

and  decree  [*],  that  the  said is  incompetent,  by 

reason  of  improvidence,  to  execute  the  duties  of  his  trust, 
as  such  executor,  and  that  letters  testamentary  of  the  said 
will  be  refused  to  the  said . 

[Or  as  above  to  (*),  and  from  thence  as  follows  :  That  the 
circumstances  of  said are  such  as  not  to  afford  ade- 
quate security  to  the  creditors,  or  persons  interested  in  the 
said  estate,  for  the  due  administration  of  the  said  estate ; 
and,  further,  the  said  surrogate  doth  order,  that  such  let- 
ters testamentary  be  refused  to  the  said ,  until  he 

shall  give  the  like  bond  as  is  required  by  law  of  adminis- 
trators in  the  case  of  intestacy.] 

[Or  as  above  to  (*),  and  from  thence  as  follows :  That  the 
said  objections  be  dismissed  ;  and,  further,  it  is  ordered, 

that  such  letters  testamentary  issue  to  the  said , 

and  that  the  said  P.  D.  pay  the  costs'  of  the  said 

on  this  proceeding,  to  wit : dollars,   and   the  fees 

rights  of  executor  in  case  of  removal  objections,  Estate  of  Shand  (20  Daily 
of  disability,  see  (id.)  §  5.  Reg.,  No.  35). 

See,  also,  generally,  as  to  form  of 


1264  FoiiMS  Relating^  to 

and  expenses  herein,  to  wit :  the  sum  o! dollars  {or 

to  be  taxed,)] 

F.  W.,  Surrogate. 


No.  1412. 
Letters  Testamentary  upon  Will. 

(Code  Civ.  Pro.,  §2636.) 

The  People  of  the  State  of  New  York^  hy  the  grace  of  God 
free  and  independent^  to  all  to  whom  these  presents 
shall  come  or  may  concern,  send  greeting  : 

Know  ye,  that  at  the  [city]  of ,  in  the  county  of 

,  on  the day  of ,  in  the  year  of  our 

Lord  one  thousand  eight  hundred  and ,  before  F. 

H.  W.,  surrogate  of  our  said  county,  the  last  will  and  testa- 
ment of ,  late  of ,  deceased  [a  copy  whereof 

is  hereunto  annexed],  was  proved,  and  is  now  approved  and 
allowed  of  by  us  ;  and  the  said  deceased,  having,  whilst  [lie] 
lived,  and  at  the  time  of  his  death,  goods,  chattels  or  cred- 
its within  the  county  of ,  in  this  State,  [or,  being, 

at  the  time  of  his  death,  a  resident  of  the  county  of , 

in  this  State,  etc.],  by  means  whereof  the  proving  and 
registering  the  said  will  and  granting  administration  of  all 
and  singular  the  said  goods,  chattels  and  credits,  and  also 
the  auditing,  allowing  and  final  discharging  the  account 
thereof,  doth  belong  unto  us,  the  administration  of  all  and 
singular  the  goods,  chattels  and  credits  of  the  said  de 
ceased,  and  any  way  concerning  [his]  will,  is  granted  unto 
0-.  H.,  of [and  J.  J.,  of ],  executor  [or  ex- 
ecutors] in  the  said  will  named,  he  [or  they],  having  [respec- 
tively] first  taken  and  subscribed  an  oath,  before  the  said 
surrogate,  faithfully  and  honestly  to  discharge  the  duties 
of  such  executor  [or  executors],  hereby  requiring,  you  the 
said  G.  H.  [and  J.  J.],  to  make,  or  cause  to  be  made,  a  true 
and  perfect  inventory  of  all  and  singular  the  goods,  chat-. 
tels  and  credits  of  the  said  deceased,  which  have  or  shall 
come  to  your  hands,  possession  or  knowledge ;  as  also  to 
make,  or  cause  to  be  made,  duplicates  of  such  inventory, 
and  cause  the  same  to  be  signed  by  the  appraisers  ;  and  the 
same  so  made  and  signed,  that  you  make  return  thereof  to 


SURBOGATES'    CoURTS.  1265 

the  surrogate  of  the  said  county,  within  three  months  from 
the  date  hereof. 

In  testimony  whereof,  we  have  caused  the  seal  of  office  of 
our  said  surrogate  to  be  hereunto  affixed.  Witness  F.  H. 
W.,  Esq.,  surrogate  of  the  said  county,  at  the  [city]  of 

,  in  the  said  county,  on  tlie day  of , 

in  the  year  of  our  Lord  one  thousand  eight  hundred  and 


[L.  s.]                F.  H.  W.,  Surrogate 
[or  J.  F.,  Cler^  of  Surrogate' s  Courts  of County.^ 


No.  1413. 
Bond  of  Executor  or  Administrator. 

(Code  Civ.  Pro.,  §2638.) 

As  in  form  No.  340  to  [*],  and  from  thence  as  follows : 
That  if  the  above  bounden,  A.  B.,  shall  faithfully  discharge 
the  trust  reposed  in  him  as  executor  of  the  will  of  C.  D.  \or 
as  administrator  of  all  and  singular  the  goods,  chattels  and 

credits  of  C.  B.],  late  oi  the  [city]  of ,  deceased, 

and  shall  obey  all  lawful  decrees  and  orders  of  the  surro- 
gate's court  of  the  county  of — ,  touching  the  admin- 
istration of  the  estate  committed  to  him  as  such  executor 
\or  administrator],  then  the  preceding  obligation  to  be  void, 
otherwise  to  remain  in  full  force  and  virtue." 

[Signatures,  etc.,  as  in  form  No.  340.] 

Sealed  and  delivered  in  presence  of . 

[Acknowledgment  as  in  form  No.  340,  or  proof  as  in  form 
No.  538;  affidavits  and  ap^Droval,  by  surrogate,  as  in  form 
No.  340.] 

No.  1414. 
Renunciation  hy  Executor. 

(Code  Civ.  Pro.,  §  2639.) 

[Title  of  proceeding.] 
I,  C.  M.,  of ,  the  executor  [or  one  of  the  execu- 

'  By  subdivision  2  of  section  2509,        See,  also,  prenernlly  as  to  let  tors  testa- 
Code  Civ.  Pro.,  the  clerk  of  the  court     mentary,  note.M  to  form  T^o.  1410. 
is  giveii  pcnver  to  sign  letters.  *  As  to  form  of  bond,  ^-.w  Code  Cfv. 

159 


1266  Forms  Relating  to 

tors]  named  and  appointed  in  and  by  the  will  of  C.  D.,  late 
of ,  deceased,  do  hereby  [*]  renounce  the  said  ap- 
pointment, and  all  right  and  claim  to  letters  testamentary 
of  the  said  will,  or  to  act  as  executor  thereof,  and  i)ray  the 
surrogate  of  the  county  of  to  accept  this  my  re- 
nunciation." 

Dated ,  18—. 

C.  M. 

In  presence  of  I.  J. 

[Acknowledgment  as  in  form  No.  340,  or  proof  as  in  form 

No.  538.]  

No.  1415. 
Retraction  of  Renunciation  hy  Executor. 

(Code  Civ.  Pro.,  §  2639.) 

As  in  form  No.  1414  to  [*],  and  from  thence  as  follows : 
Retract   the   renunciation   heretofore   made  by  me,   dated 

,  18 — .  and  filed  and  recorded  in  the  surrogate's 

office  of county  on  the day  of , 

18—.' 

Dated ,  18—. 

C.  M. 

In  presence  of  I.  J. 

[Acknowledgment,  etc.,  as  in  last  form.  No.  1414.] 


No.  1416. 

Instrument  Selecting  Person  as  Executor,  Under  a  Power 
Contained  in  a  Will. 

(Code  Civ.  Pro.,  §  2640.) 

[Title  of  proceeding.] 

I,  F.  P..  of .  pursuant  to  a  power  contained  in 

the' will  of  C.  D.,  late  of  the  [city]  of ,  deceased, 


Pro.,  ^§2638,  2667.     See,  also,  notes  must  be  filed  and  recorded  in  the  sur 

to  last  form.  rogate's  office.     (Id.) 

1  See,  as  to  retraction  of  renuncia-  ^  See,  as  to  cases  in  which  retracta- 
tion Code  Civ  Pro.  §  2639,  and  next  tion  may  be  made,  and  as  to  its  effect, 
form.  No.  1415.           '  Code  Civ.  Pro. ,  ?  2639. 

The  instrument  of  renunciation,  etc.,  The  retractation  must  bo  filed  and 

recorded  in  the  surrogate's  office.  (Id.) 


Surrogates'  Courts.  1267 

dated ,  18 — ,  authorizing  the  selection  by  me  of  an 

executor  of  said  will  [to  act  with  the  executor  {or  executors) 
named  in  said  will],  do  hereby  select  and  designate  M.  F., 

of ,  as  the  [or  an]  executor  of  said  will  [to  act  as 

aforesaid].' 

Dated ,  18—. 

F.  P. 

In  presence  of . 

[Acknowledgment  as  in  form  No.  340,  or  proof  as  in  form 

No.  538.] 

No.  1417. 

Petition  for  Order  Requiring  Executor  Named  in  Will  to 
Qualify  or  Renounce. 

(Code  Civ.  Pro.,  §2642.) 

To  the  Surrogate  of County : 

The  petition  of  A.  F.  respectfully  shows,  that  he  is  one 

of  the  executors  named  in  the  will  of  C.  D.,  late  of ^ 

deceased  [or  otherwise  desoribe  party  apx)lying]. 

That  more  than  thirty  days  have  elapsed  since  the  said 
will  was  admitted  to  probate  by  the  surrogate' s  court  of  the 

county  of \or  since  (state  other  facts  bringing  the 

case  within  section  2642  of  the  Code  of  Civil  Procedure)], 
and  that  C.  M.,  one  of  the  executors  named  in  said  will,, 
has  not  qualified  or  renounced  as  such  executor. 

[And  your  petitioner  further  shows,  that  the  said  C.  D. 
cannot  be  served  personally  within  the  State,  with  an  order 
requiring  him  to  qualify  as  such  executor  as  provided  by 
law,  for  the  reason  that  (state  reason).*] 

And  your  j^etitioner  prays,  that  an  order  be  made  requir- 
ing the  said  C.  M.  to  qualify  as  such  executor  within  a  time 
therein  specified,  and  directing  that,  in  default  of  so  doing, 
he  may  be  deemed  to  have  renounced  his  apj^ointment. 

Dated ,  18—. 

A.  F. 

[Verification  as  in  form  No.  52.  ] 

'  See,  as  to  objections  to  such  execu-        '  See  a«  to  service  by  publication, 
tor,  section  2641,  Code  Civ.  Pro.,  and    Code  Civ.  Pro.,  §  2642. 
forms  Nos.  1407-1411. 


1268  FOKMS    RELATINtr   TO 

No.  1418. 

Order  Requiring  Executor  Named  iu  Will  to  Qualify  or 

Renounce. 

(Code  Civ.  Pro.,  §2642.) 

[At,  etc.,  as  in  form  No.  1394.] 
[Title  of  proceeding.] 

It  appearing  by  tlie  petition  dated ,  18—,  of  A.  F., 

one  of  the  executors  named  in  the  will  of  C.  D.  [or  other- 
wise describe  party  applying],  that  C.  M.,  named  as  an 
executor  by  said  will,  has  not  qualified  or  renounced  as 
executor  thereof,  within  thirty  days  after  i)iobate  thereof 
[o7'  within  thirty  days  after  the  filing  in  this  office  of  an 
insrrunient  designating  him  as  such  executor,  pursuant  to 
a  power  of  appointment  contained  in  said  will  ;  o?'  within 
five  days  after  an  objection  to  his  appointment  has  been 
established  in  a  case  specified  in  section  2638  pf  the  Code  of 
Civil  Procedure].   [*] 

Now,  upon  the  application  of  [M.  N.,  attorney  for]  said 
A.  F.: 

I  do  hereby  order  and  require  the  said  C.  M.  to  qualify 

as  such  executor,  within days  from  the  service  of 

a  copy  of  this  order  upon  him  personally  [or  in  the  manner 
hereafter  mentioned]. 

And  T  further  direct,  that,  in  default  of  so  doing,  he  be 
deemed  to  have  renounced  his  appointment. 

[And  it  having  appeared  by  the  said  petition  (or  name 

other  proof),  to  my  satisfaction,  that  this  order  cannot,  with 

due  diligence,  be  served  personally  upon  said  C.  M.  within 

the  State  ;  I  do  hereby  direct,  that  the  said  order  be  served 

upon  him  by  (state  manner   of  service  by  publication  or 

otherwise.)] 

F.  W.,  Surrogate. 


No.  1419. 

Order  in  Case  of  Failure  of  Executor  to  Qualify,  Pursuant 
to  Order  (form  No.  1418). 

(Code  Civ.  Pro.,  §  2643.) 

As  in  form  No.  1418  to  [*],  and  from  thence  as  follows : 


Surrogates'  Courts.  1269 

And  I  having  made  an  order  upon  the  filing  of  said  peti- 
tion requiring  the  said  C,  M.  to  qualify,  as  such  executor, 

within days  from  the  service  upon  him  of  a  copy 

of  said  order,  personally  [or  in  the  manner  therein  pre- 
scribed], and  directing  that  in  default  of  so  doing  he  be 
deemed  to  have  renounced  his  appointment ;  and  the  said 
order  having  been  duly  served  upon  the  said  C.  M.,  as 

therein  prescribed,  on  the day  of ,  18 — , 

and  the  said  C.  M.  not  having  qualified  within  the  time 
fixed  by  said  order  : 

Now,  therefore,  on  motion  of,  etc. : 

I  do  hereby  order  and  declare,  that  the  said  C.  M.  has  re- 
nounced his  appointment  as  executor  of  the  said  will.' 

F.  W.,  Surrogate. 


No.  1420. 

Petition  for  Appointment  of  Administrator  with  the  Will 

Annexed. 

(Code  Civ.  Pro.,  §  2644.) 

To  iJie  Surrogate  of County  : 

The  petition  of  A.  B.,  of ,  respectfully  shows, 

that  he  is  a  creditor  of  C.  D.,  late  of ,  deceased,  by 

reason  [state  nature  of  claim]  [or  state  other  interest  of  peti- 
tioner in  estate]. 

That  the  will  of  said  C.  D.  was  duly  admitted  to  probate 
by  a  decree  made  and  entered  in  the  surrogate's  court  of 

county,  as  a  will  of  real  [and  personal]  property, 

on  the day  of ,  18 — . 

That  no  person  is  named  in  said  will  as  the  executor 
thereof,  and  that  said  will  contains  no  power  of  selection 
of  an  executor  thereof  to  any  j)erson  [or  that  no  person  has 
been  selected  as  executor  of  said  will  by  virtue  of  the  power 

of  selection  to ,  therein  contained,  or  state  other 

necessity  for  application]. 

That  the  following  are  the  names  and  ])laces  of  residence 
of  the  persons  who  have  a  prior  right  of  letters  of  adminis- 


•  See  further  provisions  of  section    2fi42,  Code  Civ.  Pro. ,  as  to  revocation 

of  tlic  order,  etc. 


1270  Forms  Relating  to 

tration,  with  the  will  annexed,  upon  the  esfcate  of  the  said 
C.  D.,  to  wit  [state  same].' 

That  all  of  said  persons  are  of  full  age,  except  the  said 
M.  B.,  who  is  an  infant  of years  of  age  and  up- 
wards. 

And  your  petitioner  further  shows,  that  [as  he  is  informed 
and  believes]  the  said  C.  D.  left  real  property  not  exceed- 
ing   dollars  in  value,'  and  personal  property  not 

exceeding  in  value dollars. 

And  your  petitioner  prays,  that  all  persons  having  a  i:)rior 
right  to  that  of  your  petitioner  to  administration,  with  the 
will  annexed,  upon  the  estate  of  said  C.  D.,  and  who  have 
not  renounced  such  appointment,  may  be  cited  to  show 
cause  why  administration  should  not  be  granted  to  your 

petitioner. 

A.  B. 
[Verification  as  in  form  No.  52.] 


No.  1421. 
Renunciation  l)y  Person  having  Prior  Right  to  Administer. 

(Code  Civ.  Pro.,  §2644.) 

[Title  of  proceeding.] 

I,  F.  D.,  of  the  [city]  of ,  in  the  county  of , 

a  residuary  legatee  under  the  will  of  C.  D.,  late  of , 

deceased  [or  other  proper  description],  do  hereby  renounce 

1  See  as  to  the  persons  entitled,  and  bond  of  the  administrator.     (Code  Civ. 

order  of  their  rights,  to  administer,  and  Pro.,  §  2645.) 

generally  as  to  form  of  petition.  Code  See,  further,  as  to  bond.  Estate  of 

Civ.  Pro.,  §§2643.2644,  Estate  of  Batch-  Weeks  (3  Law.  Bui.,  79;  S.  C,  1  Civ. 

elor  (64  How.,  350;  2  McCarty's  Civ.  Pro.  R,  164). 

Pro.  R.,  291;  1  Dem.,  209),  Fowler  v.  The  proceedings  upon  the  petition 

Walter  (1  i^em.,  240),  Matter  of  Allen  are  the  same,  as  upon  an  application 

(2  Dem. .  203).  for  administration  upon  the  estate  of 

•*  The  real  property  need  not  be  stated  intestate.     (Code  Civ.   Pro.,  §  2644.) 

unless  the  same,  or  the  proceeds  thereof.  See  forms  under  art.  4  of  tit.  3  of  ch.  18. 

may  come  into  the  hands  of  the  execu-  For  form  of  oath  of  administrator 

tor  or  administrator  by  virtue  oi  any  with  the  will  annexed,  see  form  No. 

provision    contained   in    the  will,   in  1.378;  for  form  of  bond,  see  form  No. 

which  case  it  is  to  be  taken  into  con-  1413. 
sideration  in  fixing  the  penalty  of  the 


SUKKOGATES'    CoURTS.  1271 

all  right  and  claim  to  administration,  with  the  will  annexed, 
of  the  goods,  chattels  and  credits  of  the  said  C.  D. 

Witness  my  hand  at aforesaid,  this day 

of ,  18—. 

F.  D. 

Sealed  and  delivered  in  presence  of , 

[Acknowledgment  or  proof  as  in  forms  No.  340,  538.'] 


No.  1422. 
Letters  of  Administration,  with  the  Will  Annexed. 

(Code  Civ.  Pro.,  §2643.) 

The  People  of  the  State  of  New  York,  hy  the  grace  of  God 
free  and  independent,  to  C.  F.  [_resldnary  legatee  under 

the  last  lolll  and  testament  of\  C.  D.,  late  of , 

deceased,  send  greeting  : 

Whereas,  E.  F.  died,  having  previously  made,  and  duly 
executed,  his  last  will  and  testament,  which  said  will  was 

admitted  to  probate  by  the  surrogate  of county, 

on  the day  of — ,  18 — ;  and, 

Whereas,  [A.  G.  and  F.  R.,  the  executors  in  said  will 
namnd,  have  both  renounced]  ;  and, 

Whereas,  the  said  C.  D.,  at  or  immediately  previous  to 

his  death,  was  an  inhabitant  of  the  county  of ,  by 

means  whereof  the  proving  and  registering  of  said  will, 
and  [f]  the  ordering  and  granting  administration  of  all  and 
singular  the  goods,  chattels  and  credits,  whereof  the  said 
testator  died  possessed  in  the  State  of  New  York  ;  and,  also, 
the  auditing,  allowing  and  discharging  the  final  account 
thereof,  doth  appertain  unto  us  ;  and  we,  being  desirous 
that  said  will  should  be  observed  and  performed,  and  that 
the  goods,  chattels  and  credits  of  the  said  deceased  may  be 
well  and  faithfully  administered,  applied  and  disposed  of, 
do  grant  unto  you,  the  said  C.  F.,  full  power,  by  these 
pre.sents,  to  administer  and  faithfully,  to  dispose  of  all  and 
singular  the  said  goods,  chattels  and  credits ;  to  ask,  de- 
mand, recover  and  receive  the  debts  which  unto  the  said 
deceased,  while  living  and  at  the  time  of  his  death,  did  be- 

'  The  renunciation  is  to  be  filed  with  of  is  to  Bo  proved  to  his  satisfaction, 
the  surrogate,  and  the  execution  there-     (Code  Civ.  Pro.,  §  2044.) 


1272  FoKMS  Relating  to 

long ;  and  to  pay  the  debts  which  the  said  deceased  did 
owe,  so  far  as  the  said  goods,  chattels  and  credits  will 
thereto  extend  and  the  law  require  ;  hereby  requiring  you 
to  observe  and  perform  the  said  last  will  and  testament, 
and  observe  and  perform  all  the  duties  to  which  you  would 
have  been  subject  if  you  had  been  named  the  executor 
thereof  ;  hereby  to  make,  or  cause  to  be  made,  a  true  and 
perfect  inventory  of  all  and  singular  the  personal  property 
and  effects  of  the  said  deceased,  which  have  or  shall  come 
to  your  hands,  possession  or  knowledge,  and  tlie  same  so 
made  to  exhibit  or  cause  to  be  exhibited  in  the  office  of  the 

surrogate  of  the  said  county  of  at  or  before  the 

expiration  of  three  calendar  months  from  the  date  hereof  ; 
and,  also,  to  obey  all  orders  that  may,  from  time  to  time, 
be  made  by  the  surrogate  of  the  county  of touch- 
ing the  administration  of  the  estate  hereby  committed  to 
you.   [*] 

And  we  do,  by  these  presents,  deirate,  constitute  and 
appoint  you,  the  said  C.  F.,  administrator,  with  the  Avill 
annexed,  of  all  and  singular  the  goods,  chattels  and  credits 
which  were  of  the  said  CD.,  deceased. 

In  testimony,  etc.  [as  in  form  No.  1412,  to  end  thereof]. 
[L.  s.]  [Signature  as  in  form  No.  1412.] 


Article  Second. 

FORMS  RELATING  TO  REVOCATION  OF  PROBATE. 
(Code  Civ.  Pro.,  Cli.  18,  Tit.  3,  Art.  2.) 

No.  1423.     Petition  for  revocation  of  probate  of  will. 

1424.  Citation  upon  petition  for  revocation  of  probate  of  will. 

1425.  Decree  revoking  probate,  or  confirming  probate  and  dismissing^ 

petition. 

1426.  Notice  of  revocation  of  probate. 


No   1423. 
Petition  for  Revocation  of  Probate  of  Will. 

(Code  Civ.  Pro.,  ^2647.) 

To  the  Surrogate' s  Court  of County  : 

The  petition  of  A.  B.,  of ,  respectfully  shows,  that 


Surrogates'  Courts.  1273 

lie  is  a  son  and  heir  at  law  of  C.  J).,  late  of ,  de- 
ceased [or  state  other  interest  in  the  estate]. 

That  less  than  one  year  since,  and  on  the day  of 

,  18 — ,  a  decree  was  made  and  recorded  by  said 

court,  admitting  to  probate  a  written  instrument  [or  written 
instruments],  dated,  etc.,  as  the  will  of  the  said  C.  D.  [or 
if  the  time  stated  of  recording  the  decree  is  not  within  a 
year  from  the  presentation  of  the  petition,  show  the  disa- 
bility of  the  petitioner  which  extended  the  time],'  as  a  will 
valid  to  pass  [both  real  and]  personal  property. 

And  your  petitioner  shows  that  the  said  will  was  invalid 
for  the  following  reasons  [state  same,  e.  g.]: 

First.  That  the  said  C.  D.,  at  the  time  of  the  execution 
of  said  instrument  [or  instruments]  puri)orting  to  be  his 
will,  was  not  competent  to  make  a  will. 

Second.  That  the  said  instrument  [or  instruments]  Avas  [or 
were]  not  [nor  was  either  of  them]  executed  and  attested  in 
the  manner  prescribed  by  law  for  the  execution  and  attesta- 
tion of  wills. 

Third.  That  the  execution  of  the  said  instrument  [or 
instruments]  by  the  said  C.  D.,  was  obtained  by  fraud,  im- 
position and  coercion  j^racticed  uj)on  tiie  said  C.  D.  by  cer- 
tain legatees  and  devisees  named  in  the  said  instrument 
[or  instruments],  or  by  some  person  or  persons  at  their 
instance,  and  under  and  by  their  direction  and  connivance  ; 
and  that  the  said  C.  D.,  at  the  time  of  the  execution  of  the 
instrument,  was  under  the  duress  and  restraint  of  the  said 
legatees  and  devisees. 

Fourth.  That  the  testimony  of  the  attesting  witnesses  to 
the  said  instrument  [or  instruments]  was  vague,  indefinite 
and  uncertain,  and  did  not  prove  the  due  execution  and 
attestation  of  the  said  instrument  [or  instruments]  in  the 
mode  prescribed  by  law. 

That  C.  M.,  of ,  is  the  executor  oT  snid  will  [or 

adnunistrator,  with  the  Avill  annexed,  of  said  estate],  and 
that  [naming  legatees  and  devisees  named  in  will,  and  stat- 
ing their  residences],  are  the  devisees  and  legatees  named 
in  said  will,  and  that  [naming  and  stating  residences  of  i)ar- 


'  See  Code  Civ.  Pro.,  §  2648. 
160 


1274 


Forms  Relating  to 


ties  to  the  proceeding  for  j)robateJ,  are  the  persons  who 
were  parties  to  the  proceeding,  in  which  the  probate  of  said 
instrument  was  granted.' 

^Vherefore  your  petitioner  prays,  that  the  probate  of  said 
instrument  [or  instruments]  may  be  revoked,  and  that  the 
above  named  persons  may  be  cited  to  show  cause,  pursu- 
ant to  article  second  of  title  third  of  chapter  eighteenth  of 
the  Code  of  Civil  Procedure,  why  such  probate  should  not 
be  revoked,  and  for  such  other  or  further  relief  as  may  be 
necessary  and  proper." 

A.  B. 

[Verification  as  in  form  No.  52.] 


No.  1424. 
Citation  upon  Petition  for  Revocation  of  Probate  of  Will. 

(Code  Civ.  Pro.,  |  2«49.) 

As  in  general  form  No.  1345,  inserting  after  word  "  there," 
as  follows :  To  show  cause  why  the  probate  of  the  instru- 
ment \or  instruments]  admitted  to  probate  as  the  will  of 
C.  D.,  late  of ,  deceased,  should  not  be  revoked.' 


'  If  a  legatee  is  dead,  his  executor  or 
administrator  must  be  cited,  if  one  has 
been  appointed  ;  if  not,  such  person 
must  be  cited  as  representing-  him,  as 
the  surrogate  designates  for  that  pur- 
pose.    (Code  Civ.  Pro.,  §  2649.) 

"As  to  this  proceeding  generally, 
see  Matter  of  Will  of  Gouraud  (95  N. 
Y.,  256  ;  S.  C.  IS  Week.  Dig.,  516  ; 
rev'g  S.  C,  28  Hun,  560;  16  Week. 
Dig.,  265),  In  re  Will  of  Phillips  (21 
Week.  Dig.,  140  ;  S.  C,  98  N.  Y.,  267), 
Pryer  v.  Clapp  (1  Dem.,  387).  Hoyt  v. 
Jackson  (2  Dem.,  443),  Heilnian  v. 
Jones  (5  Redf.,  398),  Matter  of  Dustan 
(N.  Y.  Daily  Reg.,  January  3,  1884), 
Becker  v.  Bochus  (5  Redf.,  4SS),  Mat- 
ter of  Janes  (87  Hun,  57),  Matter  of 


Tilden  (98  N.  Y.,  434),  Matter  of  Pat- 
terson (79  Hun,  371),  Matter  of  Lay- 
tin  (15  Misc.,  660),  Henry  v.  Henry  (4 
Dem.,  253),  Matter  of  Bonnett  (1  Con- 
noly,  294). 

As  to  suspension  of  proceedings  by 
executor,  after  service  of  the  citation 
upon  him,  see  Code  Civ.  Pro.,  §  2650. 
Bray  v.  Smiih  (1  Dem.,  168),  Matter 
of  McGowan  (28  Hun.  246),  Matter  of 
Hoyt  (31  Hun,  176),  La  Ban  v.  Van- 
derbilt  (3  Redf.,  384). 

'  As  to  parties  to  whom  citation  is  to 
be  directed,  see  Code  Civ.  Pro.,  §  2649  ; 
and  see  notes  to  form  No.  1423. 

As  to  hearing  upon  the  return  of 
citation  and  evidence  thereupon,  see 
(id.)  §  2651. 


Subrogates'  Courts.  1275 

No.  1425. 

Decree  Revoking  Probate,  or  Coufirmiug  Probate,  aud  Dis- 
missiug  Petition. 

{Code  Civ.  Pro.,  §  2652.) 

[At,  etc.,  as  in  form  No.  1394.] 

[Title  of  proceeding.  ] 

This  matter  liaving  come  on  to  be  heard  upon  the  written 
petition,  duly  verilied,  of  A.  D.  [the  son  and  heir  at  law], 

of  C.  D.,  late  of ,  deceased,  dated ,  18 — , 

containing  allegations  against  the  validity  of  the  will  of  C. 

D.,  late  of ,  deceased  [and  the  competency  of  the 

proof  thereof],  and  praying  that  the  probate  of  the  said  will, 
the  decree  admitting  which  to  ^n'obate  was  recorded  in  this 
court,  on  the day  of ,  18 — ,  might  be  re- 
voked, and  that  the  proper  persons  might  be  cited  to  show 
cause  why  the  same  should  not  be  revoked,  and  on  the 
return  of  the  citation  heretofore  issued  therein  requiring 
C.  M.,  the  executor  who  has  taken  uj)on  himself  the  execu- 
tion of  the  said  will,  and  C.  F.,  W.  F.  and  F.  T,,  the  legatees 
and  devisees  named  in  the  said  will,  and  [name  other  per- 
sons cited]  who  were  parties  to  the  special  proceeding  upon 
which  the  probate  of  said  will  was  granted,  to  appear  in  the 

court  on  the day  of ,  18 — ,  and  due  proof 

of  the  personal  service  of  said  citation  on  all  tlie  persons 
and  parties  named  therein  having  been  produced  and  filed, 
and  tlie  said  petitioner  having  aj^peared  by  M.  N.,  his  at- 
torney and  counsel,  in  support  of  the  said  allegations,  and 
the  said  C.  M.,  executor  as  aforesaid,  and  the  said  C.  F. 
having  appeared  by  C.  C,  their  attorney  and  counsel,  in 
opposition  thereto,  and  the  said  F.  T.  having  appeared  by 
A.  M.,  her  attorney  and  counsel,  also  in  opposition  thereto, 
and  L.  F.,  the  special  guardian  of  W.  F.,  one  of  the  said 
legatees,  a  minor,  having  duly  appeared  in  behalf  of  tlie 
said  minor,  and  no  other  party  or  person  having  appeaivd 
in  the  said  matter,  and  the  said  matter  having  been  heard 
on  several  days,  and  duly  adjoui-n«Hl  to  (liis  day,  aud  upon 
hearing  the  proofs  of  tlip  ])artiH.s  aforesaid,  and  counsel  for 
them  respectively,  and  due  deliberation  liaving  been  thon^- 
upon  had : 


1276  Forms  Relating  to 

It  is  adjudged,  decided  and  decreed,  and  the  surrogate  of 
the  county  of ,  by  virtue  of  the  power  and  author- 
ity in  him  vested,  [*J  doth  adjudge,  decide  and  decree,  that 
the  said  C.  D.,  at  the  time  he  executed  the  instrument  in 

writing,  bearing  date  the day  of ,  18 — , 

purporting  to  be  his  will,  was  not  of  sound  mind,  nor  com- 
petent to  execute  a  will,  and  that  the  said  instrument  was 
not  duly  executed  as  and  for  the  will  of  the  said  C.  D., 
deceased. 

And  it  is  further  adjudged,  decreed  and  declared,  and  the 
surrogate  aforesaid  doth  adjudge,  decree  and  declare  that 
the  said  instrument  in  writing  is  utterly  null  and  void  as  or 
for  the  will  of  the  said  C.  D,,  deceased. 

And  the  said  surrogate  doth  further  order  and  decree, 
that  the  probate  of  the  said  will  heretofore  granted  by  the 

surrogate's  court  of  the  county  of ,  and  bearing  date 

on  the da}^  of ,  18 — ,  be  and  the  same  is 

hereby  revoked,  and  that  the  costs  of  all  the  parties  to  this 
proceeding,  and  the  fees  and  expenses  thereof,  to  wit  |  in- 
sert provisions  as  to  costs],'  be  paid  out  of  the  estate  of 
the  said  deceased. 

[And  it  is  further  ordered,  adjudged  and  decreed  that  the 
letters  testamentary  heretofore  issued  upon  such  instrument 
be  and  the  same  are  hereby  revoked.''] 

[l.  s.]  [Signature  as  in  form  Ko.  1426.] 

'[O?-,  as  above  to  (*),  and  from  thence  as  follows :  doth 
order,  adjudge  and  decree  that  the  said  will  of  C.  D.,  de- 
ceased, and  the  probate  thereof,  be  and  the  same  hereby 
are  confirmed,  and  that  the  said  petition  of  the  said  C.  D. 
be  dismissed  ;  and  it  is  further  ordered,  and  the  said  surro- 
gate pursuant  to  the  statute  in  such  case  made  and  provided, 

doth  hereby  order  and  decree  that  the  said pay  the 

(insert  provisions  as  to  costs).*] 


1  See   section  25bQ,  etc..   Code  Civ.  ^  See  section  2684  of  Code  Civ.  Pro., 

Pro.,  as  to  amount  and  allowance  of  that  this   clause    is   necessaiy  where 

costs  hy  surrogate,  and  see  Matter  of  letters  have   been   issued.     See,  also, 

O'Brien  (145  N.  Y.,  379).  section  2G92,  id. 


Surrogates'  Courts.  1277 

No.  1426. 
Notice  of  Hevocation  of  Probate  of  Will. 

(Code  Civ.  Pro.,  §  2653.) 

[Title  of  proceeding.] 

Notice  is  liereby  given,  pursuant  to  section  2653  of  the 
Code  of  Civil  Procedure,  that  the  probate  of  the  will  of 
C.  D.,  late  of ,  deceased  [and  the  letters  testament- 
ary issued  thereupon  to  C.  M.],  have  been  revoked  by  a 

decree  of  the  undersigned   surrogate  of county, 

duly  made  and  entered  by  him  on  the day  of 

,  18-.- 

Dated ,  18—. 

F.  W.,  Surrogate. 

Article  Thied. 

FORMS  RELATING  TO  PROBATE  OF  HEIRSHIP. 
(Code  Civ.  Pro.,  Cli.  18,  Tit.  3,  Art.  3.) 

No.  1427.  Petition  for  probate  of  heirship. 

1428.  Citation  to  attend  probate  of  heirship. 

1429.  Decree  establishing  the  right  of  inheritance. 

1430.  Petition  to  vacate  or  modify  the  decree  establishing  the  right  of 

inheritance. 

1431.  Citation  upon  petition  (form  No.  1430). 


No.  1427. 
Petition  for  Probate  of  Heirship. 

(Code  Civ.  Pro.,  §2054.) 

To  the  Surrogate''  s  Court  of County : 

The  petition  of  A.  D.,  of ,  respectfully  shows, 

that  heretofore,  and  on  or  about  the day  of , 


18—,  C.  D.,  of ,  died  intestate  [or  witliout  having 

devised  his  real  estate  to  specific  ])ers()ns],  and  .seized  in  fee 

of  certain  real  property  situated  in  the  [city]  of , 

in  the  county  of ,  in  this  State,  described  as  fol- 
lows [describe  same]. 

'  See  Code  Civ.  Pio.,  §  2684.  By  Bcclion  2653a  of  Code  Civ.  Pro., 

This  notice  is  to  be  canHed  V)y  thfi  itiBertr-d    in    1S92,  an    uction    may  ho 

Hnriofjate,    to    be    immediately    ])iib-  maiiituiiK'd   to  deteimim'  tlm  validity 

lisheil  for  three  RucreHHive  weekn,  in  a  of  the  iivobate  of  a  will  admitted  to 

newspaper    published    in   his    county,  probate.      Ml    th(.    (levineeH,    lef,'-ato«'H 

(Code  Civ.  Pro.,  §  2(5!)3.)  and  htMiHof  the  testator,  ai  d  other  in- 


1278  Forms  Er.LATTwa  to 

That  said  C.  D.  left  liiui  surviving  j^our  petitioner,  and 
J.  D.,  of ,  and  F.  D.,  of ,  his  only  chil- 
dren, and  heirs  at  law. 

That,  as  such  heir  at  law,  your  petitioner  is  seized  in  fee 

simple  absolute  of  the  one  undivided  one part  of 

said  real  estate  in  fee  simple  [subject  to  the  dower  rights 
therein  of  his  mother,  P.  D.,  the  widow  of  said  C  D.],  and 
that  said  J.  D.  and  F.  J),  are  each  of  them  seized  of  the 
one  undivided  one-third  ^mrt  thereof  [subject  to  the  said 
dower  right  therein  of  their  mother,  tlie  said  P.  D.]. 

That  your  petitioner,  and  said  J.  D.,  are  of  full  age,  but 

that  said  F.  D.  is  a  minor  of  the  age  of years  and 

upwards. 

Your  petitioner  prays,  that  a  decree  may  be  made  by  the 

surrogate  of county,  pursuant   to  article  third  of 

title  third  of  chapter  eighteenth  of  the  Code  of  Civil  Pro- 
cedure, establishing  the  rights  of  inheritance  to  said  real 
estate,  and  that  all  the  heirs  of  the  said  C.  T>.  may  be  cited 
to  attend  the  probate  of  that  right,  and  that  your  petitioner 
may  have  such  further  or  other  relief  as  may  be  necessary 
and  proper. 

Dated ,  18—. 

A.  B. 
[Verification  as  in  form  No.  52.] 


No.  1428. 
Citation  to  Attend  Probate  of  Heirship. 

(Code  Civ.  Pro.,  §2655.) 

The  People  of  tlie  State  of  New  York,  by  the  grace  of  God 
free  and  independent,  to  [naming  heirs  other  than  the 
petitioner\  heirs  at  law  of  C.  i>.,  deceased: 

Whereas,  A.  D.,  of ,  has,  on  the day  of 

-,  18—,  presented  to  and  filed  with  the  surrogate's 


court  of county,  his  written  petition,  duly  verified 

and  dated ,   18—,   by  which  he  claims  to  be  the 

owner  in  fee  simple  absolute  of  the  [undivided]  one • 

part  of  the  real  property  hereinafter  described  of  C.  D., 

Ijite  of ,  deceased,  as  one  of  the  heirs  at  law  of  said 

C.  D.,  and  praying  for  a  decree  establishing  the  right  of 

terested  persons,  including  the  execu-  Hawke  (82  Hun,  439),  Katz  v.  Schnaier 

tor  or  administrator  must  be  parties  to  (87  id.,  343),  and  see  amendments  to 

the  action  (Laws  of  1892,  chap.  591,  said  section^  2653a,    by  chap.  943   of 

not  retroactive).     See,  also,  Hawke  v.  Laws  of  1896. 


Surrogates'  Courts.  127{> 

inheritance  thereto,  and  that  the  heirs  of  the  said  C.  D. 
may  be  cited  to  attend  the  probate  of  that  right : 

Now,  therefore,  you  are  hereby  cited  and  required  to  be 

and  attend  before  our  said  surrogate  of county, 

on,  etc.,  at,  etc.,  to  attend  the  probate  of  the  said  right  of 
inheritance  [add  clause  as  to  minors,  as  in  form  No.  1345]. 

[The  following  is  the  description  of  the  above  mentioned 
real  property.] 

In  testimony,  etc.  [as  in  form  No.  1345]. 

[L.  s.]  [Signature  as  in  form  No.  1346.] 


No.  1429. 
Decree  Establishing  the  Right  of  Inheritance. 

(Code  Civ.  Pro.,  §  2656.) 

[At,  etc.,  as  in  form  No.  1394.] 

[Title  of  proceeding.] 

The  written  petition  of  A.  B.,  of ,  duly  verified^ 

and  dated  ,  18 — ,  having  been  presented  to,  and 

filed  with,  this  court  on  the day  of ,  18 — , 

setting  forth  that  [here  state  briefly  the  facts  stated  in  the 
petition],  and  praying  for  a  decree  establishing  the  right  of 
inheritance  to  the  real  property  described  in  said  petition 
as  follows,  to  wit  [describe  same],  and  that  all  the  heirs  of 
the  said  C.  D.  might  be  cited  to  attend  the  probate  of  that 
right ;  and  the  surrogate  of county  having  there- 
upon issued  a  citation  accordingly,  setting  forth  the  name 
of  ihe  said  decedent,  and  of  the  i^etitioner,  the  interest  or 
share  which  the  said  petitioner  claimed  in  said  real  prop- 
erty, and  a  brief  description  of  the  said  real  property,  and 
requiring  all  the  said  heirs  to  attend  the  probate  of  said 
right,  at,  etc.,  on,  etc.,  and  the  said  citation  having  been 
returned  with  due  proof  of  service  thereof  iqion  the  parties 
to  whom  it  was  directed,  and  the  snid  petitioner  having  ap- 
peared at  the  time  at  which  the  said  citation  was  returna- 
ble by,  etc.  [reciting  appearances  as  in  form  No.  1245], 
and  the  said  matter  having  been  heard  on  several  days,  aiid 
duly  adjourned  to  this  day,  and  tlie  RU7Tf)gate  having  lieard 
the  proofs  and  allegations  of  the  parties,  [*]  and  there  liav- 


1280  Forms  Relating  to 

ing  been  no  contest  respecting  tlie  lieirsliip  of  any  party,  or 
respecting  the  share  to  which  any  party  is  entitled  in  said 
real  estate  ;  and  the  said  petitioner  having  established,  by 
satisfactory  evidence,  that  said  C.  D.  died  intestate  [as  to 

the  said  real  property  in  question],  on  or  about  the 

day  of ,  1 8 — . 

That,  at  the  time  of  his  death,  he  resided  at . 

That  the  said  A.  D.,  the  petitioner,  who  resides  at , 


and  was  of  the  age  of years  on  the day  of 

,  18 — ,  and  said  J.  D.,  who  resides  at ,  and  was 

of  the  age  of years  on  the day  of , 


18 — ,  and  F.  D.,  who  resides  at ,  and  was  of  the  age 

of years  on  the day  of ,  18 — ,  were 

entitled  to  inherit  from  the  said  C.  J),  the  said  real  prop- 
erty in  equal  shares,  each  of  them  being  entitled  to  the 
undivided  one-third  part  thereof,  in  fee  simj^le  absolute 
[subject  to  the  right  of  dower  therein  of  their  mother, 
P.  D.,  the  widow  of  said  C.  D.]. 

It  is  hereby  ordered,  adjudged,  decreed  and  declared,  and 
the  said  surrogate,  by  virtue  of  the  power  and  authority  in 
him  vested,  doth  hereby  order,  adjudge,  decree  and  declare, 
that  the  right  of  inheritance  to  the  said  real  x^i'^'perty  has 
been  established  to  the  satisfaction  of  said  surrogate,  in 
accordance  with  the  above  recited  facts  ;  and  that  the  said 
A.  D.,  F.  D.  and  G.  J),  are  each  of  them  entitled  to  the 
equal  undivided  one-third  part  of  said  real  property,  as  the 
heirs  at  law  of  said  C.  D.,  deceased. 

[Insert  any  provisions  as  to  costs.'] 

F.  W.,  Surrogate  of County. 

[Or  as  above  to  (*),  and  from  thence  as  follows :  And  it 
having  appeared  that  there  is  a  contest  respecting  the  heir- 
ship of  said {or  respecting  the  shares  to  which  said 

is  entitled  as  an  heir  of  the  said  CD.);  it  is  hereby 

ordered,  adjudged  and  decreed,  and  the  said  surrogate,  by 
virtue  of  the  power  and  authority  in  him  vested,  doth  order, 
adjudge  and  decree,  that  the  said  proceeding  be  and  it  is 
hereby  dismissed  (add  any  provisions  as  to  costs').'] 

1  See  provisions  as  to  costs  to  be  al-        ^  As  to  recording  the  decree,  see  sec- 
lowed  by  surrogate,  sections  2556,  etc.,    tion  2657,  Code  Civ.  Pro. 
Code  Civ.  Pro. 


SUKKOGATES'    CoURTS.  1281 

No.  1430. 

Petition  to  Tacate  or  Modify  the  Decree  Establishing  the 
Rights  of  luheritance. 

(Code  Civ.  Pro.,  §  2658.) 

To  the  Surrogate' s  Court  of  the  County  of ; 

The  petition  of  A.  M.  respectfully  shows,  that  heretofore 

and  on  the  day  of ,  18 — ,  a  petition  was 

presented  to,  and  filed  with,  this  court  by  A.  D.,  praying 
for  a  decree  establishing  the  right  of  inheritance  to  certain 
real  property,  described  as  follows,  to  wit  [describe  same]. 

That  such  proceedings  were  thereupon  had  upon  said  peti- 
tion, that  on  or  about  the day  of ,  18 — , 

and  less  than  ten  years  since,  a  decree  was  made  by  the  sur- 
rogate of county,  establishing  the  right  of  inherit- 
ance to  said  real  estate,  of  which  decree  a  copy  is  hereto 
annexed. 

And  your  petitioner  further  shows,  that  he  [state  nature 
of  right,  title  or  interest  of  petitioner  in  the  property,  or 
part  thereof  (describing  it),  and  show  how  his  right,  etc.,  is 
injuriously  affected  b}^  the  decree]. 

That  the  said  decree  is  erroneous,  in  the  following  mate- 
rial particular  \(>r  particulars]  [state  how  erroneous]. 

And  your  j)etitioner  prays,  that  the  said  decree  may  be 
set  aside  [or  modified  in  the  particular  {or  particulars)  above 
specified],  and  that  all  the  persons  whose  heirshij)  was  estab- 
lished by  the  said  decree  may  be  cited  to  show  cause  why 
the  prayer  of  this  petition  should  not  be  granted. 

Dated ,  18—. 

A.  M. 

[Verification  as  in  form  No.  62.] 


No.  1431. 
Citation  upon  Petition  (form  No.  1430). 

(Code  Civ.  Pro.,  g  20.58.) 

The  People  of  the  State  of  New  York,  hi/  the  grace  of  God 
free  and  independent,  to  [naming  jyarties  cited] : 

Wliereas,  A.  M.,  of ,  has,  on  the ; day  of 

,  18 — ,  presentf'd  to,  ;iiid  filed  witli,  tln'  surrogate's 

IGi 


1282  FoKMS  Relating  to 

court  of county  his  written  petition,  duly  verified, 

dated ,  18 — ,  stating  that  the  decree,  heretofore  en- 
tered in  this  court  on  the day  of    ,  18 — , 

establishing  the  right  of  inheritance  to  real  property  of 

C.  D.,  late  of  ,  deceased,  is  erroneous  in  a  certain 

material  particular,  specified  in  said  petition,  and  praying 
that  the  said  decree  may  be  set  aside  [or  modified  in  that 
particular],  and  that  all  the  persons  whose  kinship  was 
established  by  the  said  decree  may  be  cited  to  sliow  cause 
why  the  prayer  of  said  petition  should  not  be  granted  : 

Now,  therefore,  you  are  hereby  cited  and  required  to  be 

and  attend  before  our  surrogate  of  the  county  of ,  at, 

etc.,  on,  etc.,  then  and  there  to  show  cause  why  the  prayer 
of  said  petition  should  not  be  granted.' 

In  testimony,  etc.  [as  in  form  No.  1345]. 

[Signature  as  in  form  No.  1345.] 


Article  Fourth, 
forms  relating  to  grant  of  letters  of  admnistra- 

TION. 
(Code  Civ.  Pro.,  Ch.  18,  Tit.  3,  Art.  4.) 

No.  1432.  Petition  for  letters  of  administration. 

1433.  Citation  on  petition  for  letters  of  administratim* 

1434.  Renunciation  of  right  to  administer. 

1435.  Appearance  by  creditor,  etc. 
1486.  Decree  awarding  administration. 

1437.  Bond  of  administrator. 

1438.  Oath  of  administrator. 
M39.     Letters  of  administration. 


No.  1432. 
Petition  for  Letters  of  Administration. 

(Code  Civ.  Pro.,  §2662.) 

[Title  of  proceeding.] 
County,  ss.  : 


The  petition  of  F.  G.,  of  the  [oityl  of ,  respect- 


»  As  to  proceedings  upon  return  of    citation,  see  section  2659  of  Code  Civ. 

Pro. 


Surrogates'  Courts.  1283 

fully  shows,  that  she  is  the  [widow]  of  J.  G.,  late  of  the 

[city]  of ,  deceased. 

That  the  said  J.   G.  died  a  natural  death  on  or  about 

the day  of ,  1 ,  and  died  intestate,  as  your 

petitioner  verily  believes. 

That  your  petitioner  has  made  diligent  search  and  inquiry 
for  a  will  of  the  said  deceased,  and  has  not  found  any,  or 
obtained  any  information  that  he  left  or  ever  made  one. 

That  your  petitioner  has,  to  the  best  of  her  ability,  esti- 
mated and  ascertained  the  value  of  the  personal  property  of 
which  the  said  deceased  died  possessed,  and  of  the  probable 
amount  to  be  recovered  by  reason  of  any  right  of  action 
granted  to  an  executor  or  administrator  by  special  provision 
of  law,  and  that  the  same  does  not  exceed  in  value  the  sum 
of  about  five  thousand  dollars. 

That  the  said  intestate  left  kindred  entitled  to  his  estate, 
whose  names  and  places  of  residence  are  as  follows :  H.  G. 

and  W.  G.,  residing  in  the  [city]  of ,  in  the  county 

of ,  and  S.  B.,  wife  of  W.  B.,  residing  in  the  [city] 

of ,  in  the  county  of ,  his  only  surviving 

children,  all  of  full  age,  and  R.  G.,  residing  in  the  [city]  of 
,  in  the  county  of ,  a  minor,  having  no  gen- 
eral guardian,  the  only  child  of  S.  G.,  deceased,  who  was  a 
son  of  the  said  intestate. 

Your  petitioner  further  shows,  that  the  said  intestate,  at 
or  immediately  previous  to  his  death,  was  a  resident  of  the 

county  of ;  that  your  petitioner  is  of  full  age,  and 

she  prays  that  a  decree  may  be  made  awarding  letters  of 
administration  of  the  goods,  chattels  and  credits  of  the  said 
intestate  to  her.' 

[And  that  the  persons  required  to  be  cited,  as  prescribed 
by  section  2603  of  the  Code  of  Civil  Procedure,  may  be  cited 
to  show  cause  why  such  a  decree  should  not  be  made.'] ' 

Dated ,  18 — . 

F.  G. 

[Verification  as  in  form  No.  52.] 

'  The  prayer  may  he  for  the  award  'See,  further,  as  to  contents  of  peti- 

of  letters  either  to  the  jietitioner  or  to  tion,  section  2662  of  Code  Civ.  Pro., 

such  other  perHon  or  jiersons  haviiifc  a  jih  amended  by  <Viap.  686  of  Laws  of 

prior  rifcht,  as  may  be  entitled  thereto,  1893,    and    RddtMN^-as    v.    I'^ant   River 

or  in  the  alternative,  aH  the   petitioner  Savinf^n  Inst.  (TfJ  N.  Y.,  HKJ;  affj,'  8. 

electH.     (Code  Civ.  Pro.,  §  2662.)  C,  4:i  N.  Y.  .Super.  Ct.,  217).     An  al- 

'■' This  clause  in  brarket.s  mtiHt  he  in-  lejfation   that  the  petitioner  Iih.m  nnid« 

serted  when    there    are    any  in^rsoiiH,  dilif,'-«nt  Mearcli  ainonf,--   thi!    jmperH   of 

residents  of  tVie  state,  who  have  a  prior  the  dec»'d<Mit,  and  found  no  will,  Ih  suf- 

or  efjual  rijjht  to  administer  to  the  j)e-  ficient ;  or  that  a  pajn-r   purj)ortinff  to 

titioner,  and  who  have  not  lenonnced.  l)e  a  will  was  revoked  hy  the  testator 

(Code  Civ.  Pro.,  §§  2662,  2603.)  in  his  lifetime  ;  or  that  the  paper  was 

not  a  valid  will,  by  nuison  of  the  inca- 


1284  Forms  Relating  to 

No.  1433. 
Citation  on  Petition  for  Letters  of  Administration. 

(Code  Civ.  Pro.,  §  2663.) 

As  in  general  form  No.  1346,  inserting  therein  after  word 
"there,"  as  follows:  To  show  cause  why  a  decree  shonld 
not  be  made  awarding  letters  of  administration  of  the 
goods,  chattels  and  credits  of  C.  D.,  late  of  the  [city]  of 

,   deceased,   intestate,    to  F.   D.,   of  ,   the 

brother  [etc.]  of  the  said  decedent,  who  has  made  applica- 
tion for  the  same.' 

No.  1434. 
Renunciation  of  Rigfrt  to  Administer, 

(Code  Civ.  Pro.,  §  2663.) 

[Title  of  proceeding.] 

I,  P.  F.,  of  the  [city]  of ,  in  the  county  of , 

a  brother  of  C.  F.,  late  of  the  [city]  of ,  deceased, 

intestate,  do  hereby  renounce  all  my  right  and  claim  to  ad- 
ministration of  the  goods,  chattels  and  credits  of  the  said 
intestate. 

Witness  my  hand  at  aforesaid,  this day 

of ,  18—. 

P.  F. 

Signed  in  presence  of . 

[Acknowledgment  or  proof  as  in  forms  Nos.  340  and  538.'] 


No.  1435. 
Appearance  by  Creditor,  etc. 

(Code  Civ.  Pro.,  §2663.) 


See  form  No.  1353. 


pacity  of  the  testator.  Where  an  in-  administration  and  in  what  order,  see 
valid  or  inoperative  testamentary  Code  Civ.  Pro.,  2660  ;  Matter  of  Adm'n 
paper  is  alleged,  the  executors  and  of  Curser  (89  N.  Y.,  401 ;  rev'g  S.  C, 
legatees  named  therein,  if  known,  25  Hun,  579),  Matter  of  Zeph  (50  Hun, 
should  be  mentioned,  and  the  court  523),  Knox  v.  Nobel  (77  id.,  230), 
ought  to  require  notice  to  them  before  Matter  of  Wilson  (92  id.,  318),  Matter 
granting  administration.  (Redtield's  of  Lewis  (id.,  606). 
Law  and  Practice  of  Surrogates'  '  See  notes  to  last  form  No.  1432. 
Courts,  314).  See,  also,  O'Connor  v.  As  to  citation  in  cases  in  which  the 
Hnggins  (113  N.  Y.,  511),  Matter  of  surrogate  is  unable  to  ascertain,  to  his 
Hazard  (51  Hun,  201),  Martin  v.  Dry  satisfaction,  whether  the  decedent 
Dock,  etc.,  R.  Co.  (92  N.  Y.,  70),  Mat-  left,  surviving  him,  any  person  enti- 
ter  of  Gould  (30  State  Rep.,  949),  tied  to  succeed  to  his  estate,  see  sec- 
Matter  of  Moulton  (32  id.,  631).  tion  2663,  Code  Civ.  Pro. 

See,  also,  former  section  2661,  id.,  'Or  the  instrument   maybe  other- 

now  part  of  §  2662,  construed  in  Moor-  wise  proved  to  the  satisfaction  of  the 

house  v.  Hutchinson  (2  Dem.,  429).  surrogate.     (Code  Civ.  Pro.,  §  2663.) 

As  to  who  are  entitled  to  letters  of 


SUKBOGATES'    CoURTS.  1286 

No.  1436. 
Decree  Awarding  Administration. 

(Code  Civ.  Pro.,  §  2663.) 

[At,  etc.,  as  in  form  No.  1394.] 
[Title  of  proceeding.  ] 

Tile  written  petition   of ,  duly  verified,  dated 

■ ,  18 — ,  having  been  duly  presented  and  filed  herein, 

on  the day  of  ,  18 — ,  praying  for  a  de- 
cree awarding  letters  of  administration  of  the  goods,  chat- 
tels and  credits  of  C.  D.,  late  of ,  deceased,  to  the 

[said  petitioner],  and  a  citation  having  been  thereupon  duly 
Issued  to  the  proper  parties  requiring  them,  etc.  [state  pur- 
pose of  citation],  and  the  said  citation  having  been  returned 
with  due  proof  of  service  thereof  as  required  by  law,  upon 
all  the  parties  to  whom  the  same  was  directed,  and  [recite 
appearances,  adjournments,  etc.,  as  in  form  No.  1402] : 

Now,  it  is  hereby  ordered,  adjudged  and  decreed,  on  mo- 
tion of ,  after  hearing,  etc.,  that  letters  of  adminis- 
tration of  the  goods,  chattels  and  credits  of  the  said  C.  D., 

be  and  they  are  hereby  awarded  to  said upon  [his] 

taking  and  subscribing  the  statutory  form  of  oath,  and 
executing  a  bond '  in  the  form  required  by  law,  with  [two] 

sureties,  in  the  penalty  of  •= dollars. 

F.  W.,  Surrogate. 


No.  1437. 
Bond  of  Administrator. 

(Code  Civ.  Pro.,  §2664.) 

See  form  No.  1413. 


No.  1438. 
Oath  of  Administrator. 

(Code  Civ.  I'lo.,  ii;;  251J4,  2667.) 

See  form  No.  1378. 


'  As  to  bond,  see  section  2(J(J4,  Cod<f     §  2007,  ii.m  (mn-ndfld  by  ch.  686  of  Laws 
Civ.   Pro.,    i)reBent   Hection,    finnifi-ly     of  W.Y.\,  ami  I'dnn  Nn.  III:?. 


1286  Forms  Relating  to 

No.  1439. 
Letters  of  Adniinistratioii. 

(Code  Civ.  Pro.,  §  2663,) 

The  People  of  tlie  State  of  N&w  York,  by  the  grace  of  God 
free  and  independent,  to  F.  G.  \ioidow]  of  Z.  G.,  late 
of  the  \Gity\  of ,  in  the  county  of ,  de- 
ceased, send  greeting : 

Whereas,  the  said  J.  G.,  as  is  alleged,  lately  died  in- 
testate [being  at  the  time  of  his  death  a  resident  of  the 

county  of ,   and]    having,   whilst  living,  and  at 

the  time  of  his  death,  goods,   chattels  or  credits  within 

[the  said   county   of ,    in]   this   State,   by   means 

whereof  the  ordering  and  granting  administration  of 
all  and  singular  the  said  goods,  chattels  and  credits,  and, 
also,  the  auditing,  allowing  and  final  discharging  the  ac- 
count thereof,  doth  appertain  unto  us ;  and  we,  being 
desirous  that  the  goods,  chattels  and  credits  of  the  said 
deceased  may  be  well  and  faithfully  administered,  applied 
and  disposed  of,  do  grant  unto  you,  the  said  F.  G.,  full 
power,  by  these  presents,  to  administer  and  faithfully  to 
dispose  of  all  and  singular  the  said  goods,  chattels  and 
credits ;  to  ask,  demand,  recover  and  receive  the  debts 
which,  unto  the  said  deceased,  while  living,  and  at  the  time 
of  his  death,  did  belong ;  and  to  pa 5^  the  debts  which  the 
said  deceased  did  owe,  so  far  as  the  said  goods,  chattels 
and  credits  will  thereto  extend,  and  the  law  require,  hereby 
requiring  you  to  make,  or  cause  to  be  made  a  true  and  per- 
fect inventory  of  all  and  singular  the  person;;  1  property  and 
effects  of  the  said  deceased,  which  have  or  shall  come  to 
your  hands,  possession  or  knowledge,  and  the  same  so  made 
to  exhibit,  or  cause  to  be  exhibited,  into  the  office  of  the 

surrogate  of  the  said  county  of ,  at  or  before  the 

expiration  of  three  calendar  months  from  the  date  hereof ; 
and,  also,  to  obey  all  orders  that  may,  from  time  to  time,  be 

made  by  the  surrogate  of  the  county  of touching 

the  administration  of  the  estate  hereby  committed  to  you  ; 
and  we  do  by  these  presents  depute,  constitute  and  appoint 
you,  the  said  F.  G.,  administratrix  of  all  and  singular  the 


SUREOGATES'    CoURTS.  12^-7 

goods,  chattels  and  credits  which  were  of  the  said  J.  G., 
deceased. 

In  testimony  whereof,  etc.  [as  in  form  No.  1412]. 

[L.  s.J  F.  W.,  Surrogate. 

Article  Fifth, 
forms  relating  to  temporary  administration. 

(Code  Civ.  Pro.,  Cli.  18,  Tit.  3,  Art.  5.) 

No.  1440.  Petition  for  temporary  administration. 

1441.  Notice  of  application  for  order  appointing  temporary  administrator. 

1442.  Order  appointing  temporary  administrator. 

1443.  Letters  of  temporary  administration. 

1444.  Petition  for  payment  of  debt  by  temporary  administrator. 

1445.  Oath  of  temporary  administrator. 

1446.  Bond  of  temporary  administrator. 

1447.  Petition   tliat   temporary   administrator   deposit    money   or  show 

cause,  etc. 

1448.  Order  that  temporary  administrator  make  deposit  or  show  cause 

why  a  warrant  of  attachment  should  not  issue  against  him. 


No.  1440. 
Petition  for  Temporary  Administration. 

(Code  Civ.  Pro.,  §2670.) 

[Title  of  proceeding,  if  proceeding  is  pending.] 
To  the  Surrogate  of  the  County  of : 

The  petition  of  A.  B.,  of ,  respectfully  shows, 

that  he  is  a  creditor  of  F.  G.,  deceased,  late,  and  at  the 

time  of  his  death,  a  resident  of  the  [city]  of ,  in 

the  county  of ,  having  a  claim  against  said  F.  G., 

upon,  etc.  [stating  general  nature  of  the  claim]  \or  state 
other  interest  in  estate].' 

That  delay  has  necessarily  occurred  in  tlie  granting  of 
letters  testamentary  of  the  will  of  said  F.  G.  \or  of  admin- 
istration of,  etc.,  of  said  F.  G.],  in  consequence  of  a  con- 
test having  arisen  upon  an.applicaticju  thprefor  \or  for  the 
jjrobate  of  said  will]  [or  state  other  cause]. 

That  [naming  persons  and  stating  residences],  have  ap- 
peared as  parties  to  the  a})(>ve  entitled  proceeding. 

'See  section  2670  as  to  who  may  Hun,  318),  Matter  of  Eddy  (10  Miac., 
»'Pply»      "-'"O    Matter    of     Cliase     (32     211). 


1288  Forms  Relating  to 

That  said  persons  are  of  full  age  [except,  etc.]. 

[That  the  safety  of  said  estate  requires  the  notice  of  this 
application,  for  the  api:)ointment  of  such  temi)orary  admin- 
istrator, to  be  less  than  ten  days,  required  by  the  statute, 
for  the  following  reasons,  viz.  (state  same).] 

That  3^our  petitioner  has,  to  the  best  of  his  ability,  esti- 
mated and  ascertained  the  value  of  the  personal  property, 
of  which  the  said  deceased  died  possessed,  together  with 
the  probable  amount  to  be  recovered  by  reason  of  any 
right  of  action,  granted  to  an  executor  or  administrator  by 
special  provision  of  law,  and  that  the  same  does  not  exceed 
in  value  the  sum  of  about dollars. 

That  [state  any  special  reasons  why  the  temj)orary  ad- 
ministrator should  be  appointed]. 

Wherefore  your  petitioner  prays,  that  letters  of  tem- 
porary administration  of,  etc.,  of  said  F.  G.  may  be  issued 

to of ,'  pursuant  to  statute,  and  for  such 

other  or  further  relief  as  may  be  proper  and  necessary.* 

Dated ,  18—. 

A.  B. 
[Verification  as  in  form  No.  52.] 


No.  1441. 

Notice  of  Application  for  Order  Appointing  Temporarj 
Administrator. 

(Code  Civ.  Pro.,  §  2670.) 

[Title  of  proceeding.] 
Sir — Take  notice,  that  an  application  will  be  made  upon 

■  The  letters  may  be  issued  to  one  or  pointment  should  be  made,  and  pro- 
more  persons  competent  and  qualified  ceedings  thereupon,  West  v.  Mapea 
to  serve  as  executors.  (Code  Civ.  Pro.,  (14  Week.  Dig.,  92),  Matter  of  Chase 
g2670.)  (32  Hun,  318;  S.  C,  19  Week.   Dig-., 

Where  a  temporary  administrator  is  409),   Tooker   v.    Bell   (1    Dem.,    52), 

appointed  by  reason  of  a  contest  re-  Matter  of  Plumb  (21  State  Rep.,  107), 

spccting  a  will,  the  executor  named  in  Matter  of  Eddy  (10  Misc.,  211). 

the  -will  is  not  a  proper  person  to  be  The  appointment  is  in  the  discretion 

appointed  against  the  objection  of  the  of  the   surrogate.     (Matter  of  Chase, 

contestants,  where  he  has  an  interest  supra.) 

in  any  degree  hostile  to  the  estate.  In  a  case  specified  in  subdivision  2 

(Cornwell  v.  Cornwell,  1  Dem.,  1.)  of  section   2670,    Code  Civ.  Pro.,  the 

3  See  as  to  cases  in  which  the  ap-  application  is  by  petition,  in  like  man- 
ner as  for  administration  in  a  case  of 
intestacy,  and  the  proceedings  aie  the 


Subrogates'  Courts.  1289 

tlie  proceedings  lierein,  and  upon  the  petition,  a  copy  of 

which   is   hereto    annexed,    to   the   surrogate  of 

county,  on,   etc.,  at,  etc.,'  for  the  appointment  of  a  tem- 
porary administrator  of  the  estate  of  F.  Gr.,  late  of , 

deceased,  and  for  such  further  or  other  relief  as  may  be 
proper. 

Dated ,  18—. 

M.  C,  Attorney  for . 

[Office  address.'] 

To  [name  parties  to  the  special  proceeding].' 

I  being  satisfied,  by  proof,  that  the  safety  of  the  estate  of 
F.  G.,  deceased,  requires  the  notice  of  said  aj)plication  to 
be  shortened,  do  hereby  shorten  the  time  of  service  of  the 
foregoing  notice  to days. 

Dated ,  18—. 

F.  W.,  Surrogate? 

No.  1442. 
Order  Appointing  Temporary  Administrator* 

(Code  Civ.  Pro.,  §2670.; 

[Title  of  proceeding.  ] 
The  writen  petition  of  A.  B.,  of — ,  dated 


18 — ,  duly  verified,  having  been  filed  herein,  praying  for  the 
api>ointment  of  a  temporary  administrator  of  the  estate  of 
said  F.  G.,  and  [the  proof  of  the  will  of  said  C.  D.,  being 
contested],  and  a  delay  being  necessarily  produced  in  grant- 
ing letters  testamentary  \or  of  administration]  in  this  mat- 
ter, and  it  appearing  that  the  situation  of  the  property 
of  the  said  deceased  requires  that  snch  letters  should  be 
issued,  and  on  reading  and  filing  the  bond  executed  by 
[the  said  petitioner],  with  two  sufl;icient  sureties,  pursuant 
to  the  statute  in  such  case  made  and  provided,  and  it  ap- 
pearing that  due  notice  of  the  application  for  the  order  has 
been  given  to  each  party  to  the  above  entitled  proceeding 
who  has  appeared  : 

Now,  on  motion  of,  etc.,  after  hearing,  etc.: 

It  is  ordered,  that  the  prayer  of  the  said  petitioner  be 

Bame  as  in  article  fourth  of  title  3  cif  '  See  C'ode  Civ.  Pro.,  t^  2070. 
Code  Civ.  Pro.  See  forms  Nos.  1432-  »  See  note  2  to  form  No.  122. 
1439  (g  2670,  id.>  »  See,  also,  Code  Civ.  Pro.,  §  2681. 

162 


1290  For.Ms  Kelating  to 

granted,  and  that  such  letters  issue  to  [the  said  petitioner] 
in  pursuance  thereof.' 

F.  W.,  Surrogate. 

No.  1443. 
Letters  of  Temporary  Administration. 

(Code  Civ.  Pro.,  gi^  2670.) 

The  People  of  the  State  of  New  York,  to  G.  D.,  of , 


[sole  executor  named  in  the  instrument  in  writing^ 
purporting  to  he  the  will  of  F.  G.,  late  of  the  (cify)  of 

,  deceased,  propounded  for  proof  and  now 

pending  before  the  surrogate  of  the  county  of ] :" 

Whereas,  the  proof  of  the  said  will  is  contested,  and  a 
delay  is  necessarily  produced  in  granting  letters  testament- 
ary of  a  will,  or  letters  of  administration  of  the  goods,  chat- 
tels and  credits  of  the  said  F.  G.,  deceased,  and  it  appearing 
that  the  situation  of  the  property  of  the  said  deceased  re- 
quires that  temporary  letters  of  administration  authorizing 
the  preservation  and  collection  of  the  goods  of  the  deceased 
should  be  issued :  and  we  being  desirous  that  the  goods, 
chattels,  personal  estate  and  debts  of  said  deceased  may  be 
collected  and  preserved,  do  grant  unto  you,  the  said  C.  D., 
full  power,  by  these  presents,  to  collect,  recover  and  receive 
the  said  goods,  chattels,  personal  estate  and  debts  of  the 
said  deceased  ;  and  to  secure  the  same  at  such  reasonable 

expense  as  the  surrogate  of  the  county  of shall 

allow;  and  to  sell  such  of  the  goods  as  are  perishable, 
under  the  direction  of  the  said  surrogate,  after  the  same 
shall  have  been  appraised  ;  hereby  requiring  you  to  make, 
or  cause  to  be  made,  a  true  and  perfect  inventory  of  such 
of  the  assets  of  the  said  deceased  as  shall  come  to  your  pos- 
session or  knowledge,  and  return  the  same  to  our  said  sur- 
rogate within  three  months  from  the  date  of  these  presents  ; 

'  As  to  appointment  of  a  temporary  administrator,  see  Code  Civ.  Pro.,  §§ 

administrator  in  consequence  of  a  con-  2672.  etc. 

test  respecting  a  will  of  real  property,        ^  See,  however,  as  to  the  appointment 

and  authority  which  may  be  conferred  of  an  e.xecutor  named  in  the  will  where 

upon  him,  see  section  267.1,  Code  Civ.  the  proof  thereof  is  contested,  Howard 

Pro.,  and  Tooker  v.  Bell  (1  Dem.,  52).  v.  Dougherty  (3  Redf.,  535),  Corn  well 

As  to  general  powers  of  temporary  v.  Cornwell  (1  Dem.,  1),  cited  in  note 

1,  page  1288,  to  form  No.  1440. 


Surrogates'  Courts.  1291 

and,  also,  faithfully  and  truly  account  for  all  property, 
money  and  things  in  action,  received  by  you  as  such  tem- 
porary administrator,  whenever  required  by  our  said  surro- 
gate, or  an}'  other  court  of  competent  authority  ;  and  faith- 
fully to  deliver  up  the  same  to  the  person  or  persons  who 
shall  be  appointed  executors  or  administrators  of  the  said 
,  deceased,  or  to  such  other  person  as  shall  be  au- 
thorized to  receive  the  same  by  said  surrogate  ;  and  we  do 
hy  these  presents,  depute,  constitute  and  appoint  you,  the 
said  C.  D.,  temporary  administrator  of  all  and  singular 
the  goods,  chattels   and   credits   which  were  of  the  said 

,  deceased. 

In  testimony,  etc.  [as  in  form  No.  1412]. 

[L.  s.]  F.  W.,  Surrogate. 

No.  1444. 
Petition  for  Payment  of  Debt  by  Temporary  Administrator. 

(Code  Civ.  Pro.,  §2674.) 

To  the  Surrogate  of  the  County  of : 

The  petition  of  A.  B.,  of ,  respectfully  shows, 

that  your  petitioner  is  a  creditor  of  F.  G.,  late  of  the  [city] 
of ,  deceased. 

That  he  has  a  valid  claim  against  the  said  deceased,  on  a 
promissory  note  made  to  the  said  F.  G,  in  his  life-time  to 

the  order  of  your  petitioner,  dated  the  day  of 

,  18 — ,  for dollars,  payable  six  months  after 

<late  \or  state  in  like  manner  other  indebtedness]. 

That  no  payments  have  been  made  thereon,  and  that  there 
are  no  offsets  against  the  same  to  the  knowledge  of  your 
i:)etitioner. 

That  an  order  was  duly  made  and  entered  by  the  surro- 
gate of county  on  the day  of ,  18 — , 

appointing  C.  I),  temporary  administrator  of  tlie  estate  of 
the  said  F.  G.,  and  that  temporary  letters  of  administra- 
tion of  said  estate  were  issued  to  said  F.  G.  on  the  day 
aforesaid  \or  on  the day  of ,  18 — ]. 

That  your  petitioner  duly  exhibited  his  said  claim  to  tlio 
said  temporary  administrator,  under  tlie  notice  ])ublislied 
by  him  for  the  exhibition  r)l'  claims,  and  that  he  assented 
to  the  justness  and  correctness  of  the  same. 


1292  Forms  Relating  to 

That  your  petitioner  has  deiiiaiided  payment  of  the  said 
claim  from  the  said  administrator  since  the  expiration  of 
one  year  from  time  of  the  gianting  of  the  letters  aforesaid 
to  him,  and  that  he  has  neglected  to  pay  the  same. 

Your  petitioner  further  shows,  that  he  is  informed  and 
believes  that  ample  assets  for  the  payment  of  all  claims 
against  the  said  F.  G.,  and  exceeding  the  debts  of  the  said 
F.  G.,  have  come  into  the  hands  of  said  C.  D.,  as  such  ad- 
ministrator aforesaid. 

And  your  petitioner  prays,  that  a  citation  may  be  issued 
to  the  temporary  administrator  aforesaid,  requiring  him  to 
show  cause  why  he  should  not  pay  the  said  debt  of  your 
petitioner.' 

Dated ,  18—. 

A.  B. 
[Verification  as  in  form  No.  52.] 


No.  1445. 
Oatli  of  Temporary  Administrator. 

(Code  Civ.  Pro.,  §§  2594,  2671.) 

See  form  No.  1378.  

No.  1446. 
Bond  of  Temporary  Administrator. 

(Code  Civ.  Pro.,  §g  2664,  2670.^) 

See  iorm  No.  1413.  

No.  1447. 

Petition  that  Temporary  Administrator  Deposit  Money  or 
Show  Cause,  etc. 

(Code  Civ.  Pro.,  §  2679.) 

To  the  Surrogate  of County  : 

The  petition  of  A.  B.,  of ,  respectfully  shows, 

that  he  is  a  creditor  of  the  estate  of  F.  G.,  late  of , 

•  Held,  that  the  surrogate's  power  to  of  that  statute  must  be  .strictly  con- 
direct  payment  of  debts  by  a  collector,  stmed.  (In  re  Haskett,  3  Redf.,  165.) 
was  wholly  derived  from  .section  10  of  The  proceedings  upon  the  petition 
ch.  359  of  1870,  and  that  the  provisions  are  the  same  as  where  a  creditor  pre- 


Surrogates'  Courts.  1295 

deceased,  by  reason  of  [state  uature  of  indebtedness]  ['^]  [or 
set  forth  other  interest  of  petitioner  in  estate]. 

That  C.  D.  was  appointed  temporary  administrator  of 
said   estate,   by  order   duly  entered   by    the   surrogate   of 

county,   on   the day  of ,  18 — , 

and  that  temporary  letters  of  administration  of  said  estate 

were  duly  issued  to  him  on  the day  of , 

18—,  and  that  he  has  duly  qualihed  and  entered  upon  the 
discharge  of  his  duties  as  such  administrator.  [*] 

That  on  or  about  the day  of ,  18 — ,  and 

more  than  ten  days  since,  the  said  C.  D.  received,  as  such 

temporary  administrator,   the  sum  of dollars  in 

money  belonging  to  said  estate,  and  your  petitioner  alleges, 
upon  information  and  belief,  that  said  administrator  has 
neglected  to  deposit  said  amount  as  is  required  by  section 
2678  of  the  Code  of  Civil  Procedure  [state  any  circumstances 
showing  his  failure  to  make  such  deposit]. 

Wherefore  your  petitioner  prays  that  an  order  may  be 
made,  pursuant  to  statute,  directing  the  said  C.  D.  to  de- 
posit said  money,  forthwith,  as  is  required  by  law,  or  to 
show  cause  why  an  attachment  should  not  issue  against 
him.' 

Dated ,  18—. 

A.  B. 

[Verification  as  in  form  No.  52.] 


No.  1448. 

Order  that  Temporary  Administrator  make  Deposit  or 
show  Cause  why  a  Warrant  of  Attachment  sliould  not 
Issue  against  Him. 

(Code  Civ.  Pro.,  ^  2679.) 

[Title  of  proceeding.] 
On  reading  and  filing  the  petition  of  A.  B.,  duly  verified, 

sents  a  petition,  praying  for  a  decree  be  contained  in  a  bond,  jonvcn  under 

directing  an  executor  or  adminisfrafor  fheoritrinal  provisions  and  tlic  ovidcnco 

to  pay  his  debt,  as  prescribed  in  title  in  an  action  thereon,  Dayton  v.  .Tohn- 

fourth  of  chapter  eighteenth  of  Code  son  («0  N.  Y..  41!»). 
Civ.    Pro.      (^'  2674,    id.)      See  forms         '  Ser- T.iverniore  v.AVortMniM  (LT)  Mnn. 

Nos.  146.'>-1473.  ;M1),  Harrington  v.  Libby  (6  Duly,  250), 
*  See,  as  to  the  rccitahs  which  uhould 


1294  Forms  Relatijng  to 

and  dated ,  18 — ,  by  wliich  it  appears  that  C.  B., 

the  temporary  administrator  of,  etc.,  of  F.  G.,  deceased, 

received  as  snch  administrator  the  sum  of dollars, 

in  money,  belonging  to  the  estate  of  said  F.  G.,  more  than 

ten  days  since,  and  on  or  about  the day  of , 

18 — ,  and  that  said  C.  D.  has  neglected  to  deposit  said 
amount  as  is  required  by  section  2078  of  the  Code  of  Civil 
Procedure,  and  ui^on  the  application  of  M.  C,  attorney  for 
said  A.  B.: 

I  do  hereby  order,  that  said  C.  D.  deposit  said  moneys 
forthwith,  or  show  cause  before  me  at,  etc.,  on,  etc.,  why  a 
warrant  of  attachment  should  not  issue  against  him.' 

Dated ,  18—. 

F.  W.,  Surrogate. 

ARTICLE  Sixth. 

FORMS  RELATING  TO  REVOCATION  OF  LETTERS  TESTAMENT- 
ARY AND  LETTERS  OF  ADMINISTRATION. 

(Code  Civ.  Pro.,  Ch.  18,  Tit.  3,  Art.  6.) 

No.  1449.  Petition  by  person  interested  for  revocation  of  letters. 

1450.  Citation  upon  petition  (form  No.  1449). 

1451.  Order  upon  return  of  citation  (form  No.  1450). 

1452.  Decree  revolving  letters  on  failure  to  give  bond. 

1453.  Petition  by  executor  for  revocation  of  letters. 


No.  1449. 
Petition  by  Person  Interested  for  Revocation  of  Letters. 

(Code  Civ.  Pro.,  g§  2685,  2686.) 

[Title  of  original  proceeding  in  which  letters  were  issued.] 
To  the  Surrogate's  Court  of  the  County  of : 

The  petition  of  H,  T.,   of ,  respectfully  shows, 

that  he  is  one  of  the  legatees  under  the  will  of  J.  T.,  late  of 

the  [city]  of ,  deceased  [or  that  he  is  a  creditor  of 

the  estate  of  J.  T.,  late,  etc.,  or  state  other  interest  in  estate]. 

That  the  said  will  was  proved  before  the  surrogate  of  the 

»  See  as  to  time  at  which  order  is  to        As  to  withdrawal  of  money  deposited 
be  made  returnable,  and  as  to  time  and    by  temporary  administrator,  id. ,  §  2680. 
mode  of  service  upon  administrator, 
Code  Civ.  Pro.    g  2679. 


Surrogates'  Courts.  1295 

county  of ,  and  admitted  to  j)robate,  and  recorded 

by  said  surrogate  on  the  - — ■ day  of ,  18 — , 

and  that  letters  testamentary  thereof  were  on  the  same  day 
issued  and  granted  to  P.  T.,  sole  executor  in  the  said  will 
named  [or  allege  issue  of  letters  of  administration]. 

And  your  petitioner  further  shows,  that  the  circumstances 
of  the  said  P.  T.  are  so  precarious  as  not  to  afford  adequate 
security  for  his  due  administration  of  the  estate  of  the  said 
testator  to  the  creditors  or  persons  interested  in  the  said 
estate  ;  that  the  assets  of  the  said  testator  which  came  into 
the  hands  of  the  said  P.  T.,  as  such  executor,  as  appears  by 
the  inventory  filed  by  him,  exceed  ten  thousand  dollars ; 
that  the  said  P.  T.  has  failed  in  his  business  and  become 
insolvent,  owing  large  sums  of  money  ;  and  your  petitioner 
is  apprehensive,  and  has  reason  to  believe,  that  the  said 
assets,  or  a  portion  thereof,  will  be  lost  or  misapplied  by 
rhe  said  P.  T.  [or  set  forth  in  like  manner  other  grounds  for 
the  application  under  section  2685  of  Code  Civil  Procedure]. 

And  your  petitioner  prays  for  a  decree  revoking  the  said 
letters,  and  that  the  said  executor  [or  administrator]  may 
be  cited  to  show  cause  why  a  decree  should  not  be  made 
accordingly,  and  for  such  further  or  other  relief  as  may  be 
proper.  * 

Dated ,  18—. 

H.  T. 

[Verification  as  in  form  No.  52.] 


No.  1450. 
Citation  upon  Petition  (form  No.  1449). 

(Code  Civ.  Pro.,  §2686.) 

The  People  of  the  State  of  New  York,  to  P.  T.,  executor  of 
tJie  lolll  of  J.  T.  [or  administrator  of,  etc.,  of  J.  T.], 
late  of ,  deceased : 

You  are  hereby  cited  and  lequired  personally,  to  be  and 

■  Section  2686,  Code  Civ.  Pre,  pro-  by  affidavit  or  oral  testimony  sntisfac- 

vidcs  tliJit  tlio  p(;tition  mu.st  set  forth  tory  to  \\\v.  surrot^o-itc  of  tlic  trutli  of  llie 

the  faets  and  circtim.stunces,  showing  alleviations  contained  in  \\w  i)('tilii>n  u 

that  the  case  is  one  of  those  specified  citation  mnsi  l)e  issued  according  to 

in  section  2685,  and  that  "upon  i)ro()f  tlic   prayer   tiiereof."      It  is  held,   in 


1296  Forms  Relating  to 

appear  before  our  surrogate  of  the  county  of ,  at, 

etc.,  on,  etc.,  then  and  there  to  show  cause  why  a  decree 
should  not  be  made  revoking  the  letters  [testamentary] 
heretofore  issued  to  you  as  such  [executor]. 

In  testimony  whereof,  we  have  caused,  etc.  [as  in  form 
No.  1345]. 

[L.  s.]  [Signature  as  in  form  No.  1345.] 


No.  1451. 
Order  upon  Return  of  Citation  (form  No.  1450). 

(Code  Civ.  Pro.,  §  2687,  subd.  3.) 

[At,  etc.,  as  in  form  No.  1394.] 
[Title  of  original  proceeding.] 

On  reading  and  tiling  due  proof,  by  affidavit,  of  the  due 
and  personal  service  upon  P.  T.,  the  executor  of  the  will  of 
J.  T.,  late  of  the  [city]  of ,  deceased,  of  the  cita- 
tion heretofore  issued  in  due  form  of  law,  requiring  him  to 
appear  in  this  court  on  this  day,  to  show  cause  wliy  a  de- 
cree should  not  be  made  revoking  the  letters  testamentary 
heretofore  issued  to  him  as  such  executor ;  and  the  said 
P.  T.  having  appeared,  and  H.  T.,  the  petitioner  herein, 
having  also  appeared,  and  after  hearing  the  proofs  and  alle- 
gations of  the  parties,  and  it  satisfactorily  appearing,  by 
affidavit  [or  by  oral  testimony],  that  the  allegations  con- 
tained in  said  petition  are  true,  and'  that  the  circumstances 
of  the  said  P.  T.,  as  aforesaid,  are  so  precarious  as  not  to 
afford  adequate  security  to  the  creditors  or  other  persons 
interested  for  his  due  administration  of  the  estate  : 

It  is  ordered,  and  the  surrogate  of  the  county  of , 

pursuant  to  the  statute  in  such  case  made  and  provided, 
doth  order  and  require,  that  the  said  P.  T.  give  a  bond  as 

Moorhouse  v.    Hutchinson   (2  Dem.,  fore  not  authorized  to  petition  to  re- 

429),  that  this  latter  provision  requires  voke  letters. 

additional  proof  to  the  petition  to  jus-  See,  also,  Hassey  v.  Keller  (1  Dem., 

tify  the  issuing  of  a  citation.  577),  Atkinson  v.  Striker  (2  Dem. ,  261), 

See  Matter  of  Berney  (3  Civ.  Pro.  R.  Grubb  v.  Hamilton  (2  Dem. ,  414),  Hood 

[Browne],  122),  Drexel  v.   Berney  (1  v.  Hood  (2  Dem.,  583),  as  to  this  pro- 

Dem.,  163),  that  a  debtor  to  the  estate  ceeding. 

is  not  a  "person  interested  "  and  there-  '  See  note  1  to  form  No.  1449. 


SURKOGATES'    COUKTS.  1297 

prescribed  in  article  first  of  title  third  of  chapter  eighteenth 
of  the  Code  of  Civil  Procedure,  with  sureties,  lilve  those  re- 
quired by  law  of  administrators  upon  the  estate  of  an  intes- 
tate, in  the  penalty  of dollars,  within  live  days  from 

this  day,  or,  in  default  thereof,  that  the  letters  testamentary 
heretofore  issued  to  said  P.  T,,  as  such  executor,  be  revoked. 
F.  W.,  Surrogate. 

No.  1451. 
Decree  Revoking  Letters  on  Failure  to  Give  Bond. 

(Code  Civ.  Pro.,  §2687.) 

[At,  etc.,  as  in  form  No.  1394.] 
[Title  of  original  proceeding.  ] 

Letters  testamentary  of  the  will  of  J.  T.,  late  of  the  [city] 

of ,  deceased,  having  heretofore  been  granted  and 

Issued  by  the  surrogate  of  the  county  of to  P.  T., 

sole  executor  in  the  said  will  named,  and  H.  T.,  of , 

a  legatee  under  the  said  will,  and  interested  in  the  estate  of 
said  deceased,  having  presented  his  written  jDetition,  duly 
verified,  dated ,  18 — ,  to  the  said  surrogate,  alleg- 
ing that  the  circumstances  of  the  said  P.  T.  are  so  precarious 
as  not  to  afford  adequate  security  to  the  creditors  or  persons 
interested  for  the  due  administration  of  the  said  estate  ;  and 
the  surrogate  having  thereupon  [being  satisfied,  upon  proof, 
by  affidavit  {or  by  oral  testimony),  of  the  truth  of  the  alle- 
gations contained  in  the  said  petition],'  issued  a  citation  in 
due  form  of  law  to  the.  said  P.  T.,  executor  as  aforesaid, 

requiring  him  to  show  cause  on  the day  of , 

18—,  now  past,  why  a  decree  should  not  be  made  revoking 
the  said  letters  ;  and  due  proof  of  the  service  of  said  cita- 
tion having  been  filed  with  tlie  said  surrogate,  and  the  said 
P.  T.  and  the  said  H.  T.  having  appeared  on  the  .said  day, 
and  after  hearing  the  proofs  and  allegations  of  tlie  parties, 
and  it  having  appeared  that  the  rii-cnmstanres  ot  the  said 
P.  T.,  executor  as  aforesaid,  ai-e  pi-ecarious  as  aforesaid,  and 
the  surrogate  having  thereupon,  pursuant  to  the  statute  in 
such  case  made  and  provided,  ordered  and  recpiired  the  said 
H.  T.  to  give  a  bond  as  prescribed  in  article  first  of  title 


'  See  note  1  Ui  form  No.  1449. 

163 


1298  FoKMs  Relating  to 

third  of  chapter  eighteenth  of  the  Code  of  Civil  Procedure, 
with  sureties  as  required  by  law  of  administrators  upon  the 

estate  of  an  intestate,  in  the  penalty  of dollars, 

within  live  days  from  the  said  day,  and  the  said  P.  T.  hav- 
ing [*]  neglected  to  give  such  bond  so  required : 

It  is  ordered  and  decreed,  and  the  surrogate  of  the  county 

of ,  pursuant  to  the  statute  in  such  case  made  and 

provided,  doth  order  and  decree,  that  the  letters  testament- 
ary of  the  will  of  J.  T.,  late  of  the  [city]  of ,  de- 
ceased, heretofore  granted  and  issued  by  the  said  surrogate 
to  P.  T.,  sole  executor  in  the  said  will  named,  and  bearing 

date  on  the day  of ,  18 — ,  be  and  the  same 

are  hereby  revoked  ;  and  all  authority  and  rights  of  the  said 
P.  T.,  as  such  executor  aforesaid,  are  hereux)on  to  cease.' 

[Insert  any  directions  as  to  costs.  See  sections  2566,  etc., 
of  Code  of  Civil  Procedure.] 

F.  W.,  Surrogate. 

[Or  as  above  to  (*),  and  from  thence  as  follows:  Within 
the  time  allowed  by  said  order  given  the  bond,  as  required 
by  said  order ;  it  is  hereby  ordered  and  decreed,  and  the 

surrogate  of  the  county  of ,  pursuant,  etc.,  doth 

order  and  decree,  that  the  proceedings  upon  the  said  peti- 
tion of  said  H.  T.,  be  and  they  are  hereby  dismissed.  And 
it  is  further  ordered  and  decreed,  that  (insert  jDrovision  as 
to  costs  ;  see  sections  above  referred  to).]* 


No.  1452. . 
Petition  by  Executor  for  Revocation  of  Letters. 

(Code  Civ.  Pro.,  §2689.) 

To  the  Surrogate's  Court  of  the  County  of : 

The  petition  of  C.  D.,  of  the  [city]  of ,  respect- 
fully shows,  that  he  was  duly  qualified  and  appointed  by 

'  Held,  that  the  sureties  in  a  bond  That  decree  does  not  affect  testa- 
given  under  the  former  statute,  in  a  mentary  trusts,  except  in  the  cases 
similar  proceeding,  were  liable  for  pre-  specially  prescribed  for  that  purpose 
vious  defaults,  and  that  the  surrogate's  in  title  sixth  of  chapter  eighteenth  of 
decree  upon  the  executor's  accounting  Code  Civ.  Pro.,  see  section  2688,  id. 
was  conclusive  upon  the  sureties.  (Sco-  See,  also.  Estate  of  Sohn  (1  Civ.  Pro. 
field  V.  Churchill,  72  N.  Y.,  565;  aff'g  R.,  373). 
S.  C,  9  Hun,  157.) 


SurkoctAtes'  Courts.  1299 

the  surrogate  of  the  county  of as  the  [executor  of 

the  will  of  F.  G.,  late  of  the  (city)  of ,  deceased], 

on  the day  of ,  18 — . 

Your  petitioner  further  shows,  that  immediately  after  his 
appointment  as  such  [executor]  he  entered  upon  the  duties 
of  the  trusts  thereof. 

And  your  petitioner  further  shows,  upon  information  and 
belief,  that  the  creditors,  or  persons  claiming  to  be  creditors, 
of  the  said  deceased  and  their  places  of  residence  are  as  fol- 
lows [state  same]. 

That ,  the  husband  [or  wife]  of  said  decedent, 

resides  at ,  and  that  the  names  and  places  of  resi- 
dence of  the  next  of  kin  [or  legatees]  of  said  decedent  are 
as  follows  [state  same].' 

And  your  petitioner  further  shows,  that  [state  the  facts 
upon  which  the  application  is  founded]. 

Wherefore  your  j)etitioner  prays,  that  his  account  as  such 
[executor]  may  be  judicially  settled  ;  that  a  decree  may 
thereupon  be  made  revoking  his  letters  and  discharging 
him  accordingly,  and  that  the  same  persons  who  must  be 
cited  upon  a  petition  for  a  judicial  settlement  of  his  account 
as  such  [executor],  as  prescribed  in  article  second  of  title 
fourth  of  chapter  eighteenth  of  the  Code  of  Civil  Procedure, 
to  wit :  the  creditors  or  persons  claiming  to  be  creditors ; 
the  husband  [or  wife],  and  the  legatees  [or  next  of  kin]  of 
said  decedent,  may  be  cited  to  show  cause  why  such  a  decree 
should  not  be  made.' 

Dated ,  18—. 

C.  D. 

[Verification  as  in  form  No.  52.] 


Article  Seventh. 

FORMS  RELATING  TO  FOREIGN  WILLS ;  ANCILLARY  LETTERS. 

(Code  Civ.  Pro.,  Ch.  18,  Tit.  3,  Art.  7.) 
No.  1453.     Petition  for  ancillary  letters  testamentary,  or  with  the  will  annexed, 
upon  forei<.m  probate. 

1454.  Petition  for  iinciilary  lettcns  of  administration. 

1455.  Citation  on  petition  for  ancillary  letters. 

'  See  Matter  of  Bernstein  (3  Rcdf.,     see  section  2690,  Code  Civ.  Pro.;  and 
20).  see  forms  Nos.  1470-MH:r 

As  to  proceedings  upon  the  hcaririf,', 


1300  Forms  Relating  to 

No.  1453. 

Petition  for  Ancillary  Letters  Testamentary,  or  with  the 
AVill  Annexed,  npon  Foreij;n  Probate. 

(Code  Civ.  Pro.,  S§  2695,  2698.) 

To  the  Surrogate' s  Court  of  the  County  of ; 

The  petition  of  C.  D.,  of ,  respectfully  shows,  [*] 

that  F.  M.,  now  deceased,  resided  at  the  time  of  the  execu- 
tion by  him  of  the  will  [or  at  the  time  of  his  death]  herein- 
after mentioned  out  of  the  State  of  New  York,  and  at , 

in  the  [State]  of . 

That  in  his  life-time,  and  on  or  about  the day  of 

,  18 — ,  the  said  F.  M.  made  and  executed  at 


his  will  of  [real  and]  personal  property,  and  died  on  the 
day  of ,  18 — . 

That  on  the day  of ,  18 — ,  said  will  was 

duly  admitted  to  probate   by  [name  court],  a  competent 

court,  for  that  purpose,  within  the  said  State  of 

[and  that  letters   testamentary  (etc.)  upon   said  will  were 

duly  issued  by  said Court  to  your  petitioner  {or  to 

J.  K.)].' 

And  your  petitioner  further  shows,  that  the  said  C.  D. 

left  personal  property  within  the  county  of ,  in  this 

State  [and  in  no  other  county  of  this  State]  [or  state  other 
facts  giving  jurisdiction  to  the  surrogate].^ 

[That  your  petitioner  has,  to  the  best  of  her  ability,  esti- 
mated and  ascertained  the  value  of  the  personal  property 
left  by  the  said  C.  D.,  and  that  the  same,  together  with  the 
probable  amount  to  be  recovered  by  reason  of  any  right  of 
action  granted  to  an  executor  or  administrator  by  special 
provision  of  law,  does  not  exceed  in  value  the  sum  of  about 
dollars.'] 

[That  the  amount  due  from  the  said  decedent  to  residents 
of  this  State,  so  far  as  your  petitioner  can  ascertain  the  same, 

'  As  to  who  may  be  appointed  ancil-  Y.,  19),  Moyer  v.  Weil  (1  Dem.,  71), 

lary  executor,  etc.,  see  Code  Civ.  Pro.,  Weed  v.  Waterbury  (5  Eedf.,  114),  as 

§  2697;  Hendrickson  v.  Ladd  (2  Dem.,  to  jurisdiction  of  surrogate. 
402).  ^  These  clauses  relate  to  the  amotmt 

«  See  Code  Civ.  Pro.,  §§  2476,  2477;  of  the  bond  to  be  given  by  the  execu- 

In  re  Taintor  (5  Redf.,  79),  Beers  v.  tor,  as  to  which  see  sections  2664,  2699; 

Shannon  (73  N.  Y.,  292;  rev'g  S.  C,  Code  Civ.  Pro. 
12  Hun,  161),  Russell  v.  Hartt  {87  N. 


Surrogates'  Courts.  1301 

does  not  exceed  the  sum  of dollars,  and  that  the 

sums  which  the  creditors  of  said  decedent  who  reside  in  the 
State  will  be  entitled  to  receive  from  the  executor  (etc.)  of 
said  decedent  upon  an  accounting  and  distribution,  either 

within  this  State  or  within  the  said  State  of ,  will 

not  exceed,  as  your  petitioner  is  informed  and  belioves,  the 
sum  of dollars.'] 

That  the  names  and  residences  of  the  creditors  or  persons 
claiming  to  be  creditors  of  the  said  decedent  residing  within 
this  State,  so  far  as  the  same  can  be  ascertained  by  your 
petitioner,  are  as  follows,  to  wit  [state  same]  [or  that  so  far 
as  can  be  ascertained  by  jour  jDetitioner  there  are  no  credit- 
ors, or  persons  claiming  to  be  creditors,  of  the  said  decedent 
residing  in  this  State]. 

And  your  petitioner  further  shows,  that  annexed  to  this 
petition  are  exemplified  copies  of  the  said  will  and  of  the 
said  judgment  [or  decree,  07'  order]  admitting  the  same  to 
probate,  and,  also,  of  the  letters  testamentarj'  [oj-  with  said 

will  annexed]  issued  by  said Court  to as 

aforesaid,  and  which  are  respectively  marked  exhibits  "A," 
"B,"  and  "C."^ 

And  your  petitioner  prays  that  ancillary  letters  testa- 
mentary [or  with  the  said  will  annexed]  may  be  issued  to 
your  petitioner  [or  to  J.  K.'],  pursuant  to  the  statute  in  such 
case  made  and  i)rovided.^ 

Dated ,  18—. 

C.  D. 

[Verification  as  in  form  No.  52.] 

*  See  note  3  to  this  form.  Langbein  (2  Civ.  Pro.  R.  [Browne],  226; 

'  Where  an  application  is  made  pur-  S.  C,  1  Dem.,  448),  Estate  of  Batchelor 

suant  to  section  X'G'.).")  of  CodeCiv.  Pro.,  (2Civ.Pro.R.  [Mc(  "arty],  291;  S.C.,64 

for  ancillary  letters  nnder  a  will  proved  How.  Pr.,  350),  Brown  v.  Landon  (30 

in  a  court  of  another  State,  by  whose  Iliin,  57;  S.   C,  4  Civ.  Pro.  K.,  11), 

laws  wills  are  admitted  by  the  oral  di-  Estate  of  Thompson  (1  Civ.  Pro.   li. 

rection  of  the  court  without  any  writ-  [McCarty],  264),  Estate  of  \Vinuiiif,^ton 

ten  "judgment,  decree  or  order,"  that  (1  Civ.  Pro..R.  [McCarty],  2(57),  Estatu 

fact  should  appear  by  the  certificate  of  of  Ladd  (5  Civ.   Pro.   R.    [McCarty], 

exemplification,  or,  if  Buch  a  certificate  F^atate  of  Gavin  (15  Civ.  Pro.  R.,  390), 

is  refused,  then  by  the  affidavit  of  a  amon^,''   otiier   casua   f^en^rally    as    to 

jierrton     havinj^   knowledf^'e   of    those  (heso  jiroceedinffs.     Seo,  also,  jiiik-ihI- 

lawH.     (In  re  Hud.son,  5  Keilf.,  333  )  merit  to  §  '2')^^>  of  Code  Civ.  Pro.,  by  cli. 

'SeeKetate  of  Thomi)Hon  (3  L.  Bui.,  495,  of  LawH  of  1888. 

95;  S.  C,  1  Civ.  Pio.,  264),  Estate  of  Ah  to  f,'<Mim;al  jiowers  and  dnlics  of 

60),  Matter  of  fiilleran  ('>()  linn,  399),  ancMllary  executora,  etc.,  bou  Code  Civ. 

Hopper  V.  Hopper    (125  N.  Y.,  400),  K.,  §  2702. 


1302  Forms  Relating  to 

No.  1454. 
Petition  for  Ancillary  Letters  of  Administration. 

(Code  Civ.  Pro.,  §§  2696,  2698.) 

To  the  Surrogate^  s  Court  of  the  County  of / 

The  petition  of  C.  D.,  of ,  respectfully  shows,  that 

F.  M.,  now  deceased,  resided,  at  the  time  of  his  death,  as 
hereinafter  mentioned,  out  of  the  State  of  New  York,  and 
at ,  in  the  [State]  of [in  the  United  States]. 

That  said  F.  M.  died  intestate  on  the  day  of 

,  18 — ,  and  that  on  the day  of , 

18 — ,  letters  of  administration  of  all  and  singular  his  goods, 

chattels  and  credits  were  issued  by  the Court,  a 

competent  court  of  the  said  [State]  of to  your  peti- 
tioner [or  to  G.  H.],  and  the  said  letters  of  administration 
are  herewith  presented  to  this  court. 

[Or  that  your  petitioner  {or  said  Gr.  H.)  is  entitled  to  the 

possession  in  the  said of ,  of  the  personal 

estate  of  said  decedent.'] 

That  no  ancillary  letters  of  administration  have  been 
issued  upon  the  estate  of  the  said  F.  M.,  and  that  no  appli- 
cation for  letters  of  administration  upon  the  said  estate  has 
been  made  by  a  relative  of  said  decedent  [who  is  legally 
competent  to  act]  to  a  surrogate's  court  of  this  State  having 
jurisdiction  to  grant  the  same  [in  which  either  such  letters 
have  been  granted,  or  the  application  has  not  been  finally 
disposed  of].'' 

[Here  insert  the  allegations  of  petition,  form  No.  1453,  as 
to  the  property  left  by  decedent,  and  as  to  the  names  and 
residences  of  the  creditors.] 

[And  your  petitioner  further  shows,  that  he  is  the  attor- 
ney, in  fact,  of  the  said  G.  H.,  and  duly  authorized  as  such 
to  make  this  application  on  his  behalf.'] 

And  your  petitioner  prays,  that  ancillary  letters  of  ad- 
ministration may  be  issued  to  your  petitioner  [or  to  said 

'  See  section  269G,  Code  Civ.  Pro.,  as        ''See  subs.  1  and  2  of  section  2696, 
amended  by  ch.  535  of  Laws  of  1881,     Code  Civ.  Pro. 
and  bv  ch.  495  of  Laws  of  1888.  *See  Code  Civ.  Pro.,  §  2696. 


SUKBOGATES'    CoURTS.  1303 

G.  H.  ]  upon  said  estate,  pursuant  to  the  statute  in  such  case 
made  and  provided.' 

Dated ,  18—. 

C.  D.  [Attorney  in  fact  for  G.  H.]. 


No.  1456. 
Citation  on  Petition  for  Ancillary  Letters. 

(Code  Civ.  Pro.,  g  2698.) 

See  general  form  of  citation,  No.  1345.' 


TITLE  IV. 

Article  First. 

rorms  relating  to  aid,  supervision  and  control  op 
an  executor  or  administrator. 

(Code  Civ.  Pro.,  Ch.  IB,  Tit.  4,  x^rt.  1.) 

No.  1456.  Petition  by   executor,  etc.,  in   proceeding  to  discover  propertj' 
withheld. 

1457.  Citation  in  proceeding  to  discover  property  withheld,  etc. 

1458.  Order  to  be  annexed  to,  or  indorsed  upon,  citation  (form  No.  1457). 

1459.  Answer  of  person  cited,  as  to  ownership  of  property,  etc. 

1460.  Decree  awarding,  possession  of  the  property  to  petitioner. 

1461.  Bond  to  prevent  decree. 

1462.  Warrant  to  seize  property. 

1463.  Petition  to  compel  the  return  of  an  inventorj'. 

1464.  Order  that  executor,  etc.,  return  inventory,  or  show  cause  why  he 

should  not  be  attached. 

1465.  Petition  by  creditor  for  payment  of  his  claim. 

1466.  Order  for  citation  on  the  above  petition. 

1467.  Citation  to  executor  to  show  cause  why  payment  of  claim  should 

not  be  decreed. 

1468.  Answer  of  executor  to  petition  for  payment  of  a  claim. 

1469.  Decree  dismissing  peMtion  on  filing  of  answer,  etc. 

1470.  Decree  for  payment  of  a  claim, 

1471.  Petition  for  payment  of  a  legacy. 

1472.  Decree  for  payment  of  a  legacy. 

1473.  Bond  by  legatee  on  application  within  a  year. 

1474.  Petition  on  failure  of  executor,  etc. ,  to  set  aside  exempt  property. 

'  See  notes  to  form  No.  1453,  and  each  creditor  or  person  claiming  to  be 

Weed  V.  Waterbury  (5  Redf.,  114).  a  creditor,  wh.rc  name  and  residence 

.As  to  general  powers  and  duties  of  have  been  jisccrtained,  and  also  gcner- 

ancillary  administrator,  see  Code  Civ.  ally  to  all  creditors  or  persons  claiming 

Pro. ,  ^  2702.  to  lie  creditors  of  (he  decedent.     (Code 

»  The  citation  is  to  be  directed  to  Civ.  Pro.,  J5  2698.  ) 


130  i  Forms  Eelating  to 

No.  1456. 

Petition  by  Executor,  etc.,  in  Proceeding  to  Discover  Prop- 
erty Withheld,  etc. 

(Code  Civ.  Pro.,  §  2707.) 

To  the  Surrogate"  e  Court  of  the  County  of : 

The  petition  of  A.  B.,  of ,  respectfully  shows,, 

that  on  the day  of ,  18 — ,  your  petitioner 

was  appointed  executor  of  the  will  [or  administrator  of, 
etc.]  of  F.  G.,  late  of ,  deceased,  by  the  said  surro- 
gate's court. 

And  your  petitioner  further  shows  [upon  information  and 

belief],  as  follows  :  That  C.  D.,  of [here  state  facts 

tending  to  show  that  money  or  other  personal  property 
which  ought  to  be  delivered  to  the  petitioner,  or  which 
ought  to  be  included  in  an  inventory  or  appraisal,  is  in  the 
possession  or  control  of  a  person  who  withholds  the  same 
from  him  ;  or  conceals  or  refuses  to  exhibit  it,  so  that  it 
cannot  be  inventoried  or  appraised]. 

And  your  petitioner  prays,  that  an  inquiry  may  be  made 
respecting  such  money,  etc.,  and  that  the  said  [naming  per- 
son complained  of]  may  be  cited  to  attend  the  said  inquiry, 
and  to  be  examined  accordingly.' 

Dated ,  18—. 

A.  B. 

[Verification  as  in  form  No.  52.] 


'See  Tilton  v.  Ormsby  (10  Hun,  7  ;  An  order  made  under  former  section 

aff'd,  70  N.  Y.,  609),  Summerfield.  v.  2706,  now   section   2707,    is  an  order 

Howie  (2  Redf.,  149).  affecting  a  substantial  right.     (Id.) 

The  act  (Laws  1870,  ch.  394)  under  See,  also,  as  to  this  proceeding.  Met. 

which  the  above  decisions  were  made  Trust   Co.   v.  Rogers  (1    Dem.,  365), 

was  held  to  be  unconstitutional  in  Mat-  Mead  v.  Sommers  (2  Dem.,  296),  Mau- 

ter  of  Beebe  (20  Hun,  462);butit  was  ran   v.  Hawley   (id.,   396),   Matter  of 

held,  in  Matter  of  Curry  (25  Hun,  321 ;  Lynch  (83  Hun,  39),  Matter  of  Stewart 

S.  C,  1  Civ.  Pro.  R.,  319),  Matter  of  (77id., 564),  Matter  of  Wing  (41  id., 452). 

Seaman  (16  "Week.  Dig.,  118),  that  the  The    petition  may  be  accompanied 

provisions  of  Code   Civ.  Pro.  (§  2706,  with   an   affiilavit   or  other  evidence, 

etc.),  were  so  drawn  as  to  avoid  the  written  or  oral,  tending  to  support  the 

objections  taken  in  the  last  cited  case,  allegations  thereof.     (Code  Civ.  Pro., 

and  that  they  are  not  in  conflict  with  former  ^  2706,  now  §  2707.) 

aoyof  the  provisions  of  the  constitution.  As  to  officers  to  whom  the  petition 

All  the  executors,  etc.,  should  join  may  be  presented  in  the  absence  of  the 

in  the  application.    (la  re  examination  surrogate  and  their  powers,  see  Code 

of  Slingerland,   21   Week.  Dig.,  413  ;  Civ.  Pro.,  former  §  2709,  now  §  2708, 

S.  C,  36   Hun,  575    [Sup.    Ct.,    Gen.  as  amended  by  ch,  946  of  1895,  taking- 

Tm.].)  eflFect  Jan.  1,  1896. 


Surrogates'  Courts.  1305 

No.  1457. 
Citation  in  Proceeding  to  Discover  Property  Withheld,  etc. 

(Code  Civ.  Pro.,  §  2707.) 

See  general  form  of  citation  No.  1345,  inserting  therein  as 
the  purpose  of  the  citation,  as  follows :  to  attend  the  in- 
quir}^  respecting  the  property,  etc.,  alleged  to  be  in  your 
possession  or  control,  and  to  belong  to  the  estate  of  F.  G., 

late  of ,  deceased  [or  otherwise,  according  to  the 

proof),  and.  to  be  examined  accordingly.' 

[Annex  to,  or  indorse  upon,  the  citation  next  order,  form 
No.  1458.]  

No.  1458. 

Order  to  be  Annexed  to,  or  Indorsed  upon,  Citation  (form 

No.  1457). 

(Code  Civ.  Pro.,  §2708.) 

[Title  of  proceeding.] 
To  [naming  party  cited] : 

You  are  hereby  required  to  attend  personally,  at  the  time 
and  place  specified  in  the  within  [or  annexed]  citation. 

Dated  at ,  in  the  county  of ,  on  the 

day  of ,  18—.' 

F.  W.,  Surrogate  of County. 


No.  1459. 
Answer  of  Person  Cited,  as  to  Ownership  of  Property,  etc. 

(Code  Civ.  Pro.,  ^2709.) 

[Title  of  proceeding.  ] 

The  answer  of  C.  D.  to  the  petition  of  A.  B.  herein,  re- 
spectfully shows,  that  he  is  the  owner  of  the  i)i()i)rity  men- 
tioned and  described  in  the  petition  of  A.  B.,  in  I  lie  above 
entitled  proceeding  [or  that  he  is  entitled  to  tlie  possession 


'  See,  as  to  citation  to  person  resid-  clerk  of  the  court.     (Mauran  v.  Haw- 
ing' or  b(;ing  without  the  county  of  the  U'.y  2  D('in.,  30(5.) 

flurrof^ate,  nediori  2707,  Coili;  Civ.  Pro.  '■'  As  to  M-rvii-e  of  citation  and  onlor, 

artaun^ndwd  Ijych.  (jbO  of  LawH  of  1893.  see  Code  Civ.  Pro.,  § 'J7()H,  hh  jiiu«'iid<'d 

See,  also,  notea  to  form  No.  H.'iH.  I)y  ch.  68G  of  LawH  of  1893,  and  Mau- 

The  citation  cannot  l)e  issued  by  the  ran  v.  Hawley  (2  Deui.,  39t)). 

164 


1306  Forms  Relating  to 

of  the  property  mentioned,  etc.,  by  virtue  of  a  lien  thereon 
[or  special  interest  therein],  to  wit  [state  nature  of  lien  or 
interest].' 

C.  D.  [or  M.  N.,  Attorney  for  C.  D.]. 
[Office  address,  etc."] 
[Verification  as  in  forms  Nos.  161,  etc.] 


No.  1460. 
Decree  Awarding  Possession  of  the  Property  to  Petitioner. 

(Code  Civ.  Pro.,  §2709.) 

[At,  etc.,  as  in  form  No.  1394.] 
[Title  of  proceeding.] 

The  petition  of  A.  B.,  of ,  executor  of  the  will 

[or  administrator  of,  etc.]  of  F.  G.,  late  of ,  de- 
ceased, dated ,  18 — ,  and  duly  verified  [and  accom- 
panied by  proofs  by  affidavit,  etc.,  tending  to  support  the 
allegations  thereof],'  having  been  duly  filed  in  tlie  above 

entitled  proceeding  on  the day  of ,  18 — , 

from  which  petition  [and  other  papers]  it  appears  that  C.  D., 

of ,  has  in  his  possession,  or  control,  the  sum  of 

dollars  [or  name  other  property]  belonging  to  the 

estate  of  said  F.  G.,  deceased,  which  ought  to  be  delivered 
to  the  said  petitioner  [or  which  ought  to  be  included  in  the 
inventory  {or  appraisal)  of  said  petitioner],  and  that  said 
C.  D.  withholds  the  same  from  the  said  petitioner  [or  con- 
ceals {or  refuses  to  exhibit)  the  same  so  that  it  cannot  be 
inventoried  {or  appraised)]  ;  and  the  surrogate  being  satis- 
fied, upon  the  said  petition  [or  upon  the  papers  so  pre- 
sented], that  there  are  reasonable  grounds  for  an  inquiry 
respecting  said  property,  and  having  accordingly  issued  a 
:;itation,    returnable   before    [him] '   forthwith   [or  on   the 

*  An  answer  that  the  person  cited  is  chapter  686  of  Laws  of  1893,  former 
the  "owner  of  the  i)roperty  "  in  ques-  sections  2710,  2711  and  2712  of  Code 
tion  is  sufficient  without  showing  how  Civ.  Pro.  were  consolidated  and  re- 
he  became  such;  but  where  he  claims  numbered  as  section  2709. 

to  be  "  entitled  to  the  possession  there-  ^  The  statute  provides  that  the  peti- 

of,  by  virtue  of  alien  thereon  or  spei'ial  tion   may   be    accompanied    by   such 

interest  therein,"   he  must  allege  the  proofs.     (Code  Civ.  Pro.,  §  2707.) 

facts  necessary  to  sustain  the  claim.  *  See,  as  to  before  whom  the  citation 

(Met.  Trust  Co. v.  Rogers,  1  Dem.,  365.)  may  be  made  returnable  in  case  of  the 

*  See  note  2  to  form  No.  122.     By 


Surrogates'  Courts.  1307 

clay  of ,  18—],  requiring  the  said  C.  D.  to 

attend  the  said  inquiry  and  to  be  examined  accordingly, 
and  having  indorsed  thereupon  [or  annexed  thereto]  his 
order,  requiring  the  said  C.  D.  to  attend,  personally,  at  the 
time  and  place  therein  specified,  and  said  citation  and  order 
having  been  duly,  personally,  served  upon  said  C.  D.  as  re- 
quired by  law,  and  said  C.  D.  having  attended,  pursuant  to 
the  requirements  of  the  said  citation  and  order,  and  having 
been  duly  sworn  and  examined  before  [said  surrogate],  and 
said  petitioner  having  also  api)eared  by  his  at-torney,  M.  Gf., 
and  [the  surrogate]  having  heard  the  other  proofs  and 
allegations  of  the  parties,  [*]  and  no  answer  having  been 
interposed  by  said  C.  D.  to  the  said  petition  as  prescribed 
by  section  2710  of  the  Code  of  Civil  Procedure,  and  the  said 
proceeding  having  been  duly  adjourned,  from  time  to  time, 
until  this  day  ;  and  it  having  appeared  to  the  said  [surro- 
gate] from  the  said  examination  [and  other  testimony]  that 

there  is  reason  to  suspect  that  the  sum  of —  dollars 

[or  the  property  described  as  follows,  to  wit  (describe  same)] 
of  the  said  decedent  is  withheld  [or  concealed]  by  the  said 
C.  D.,  and  [f]  no  security  for  the  payment  of  said  money  [or 
for  the  delivery  of  the  possession  of  said  proi:)erty]  having 
been  given  by  said  C.  D.  as  prescribed  by  law : 

It  is  hereby  ordered  and  decreed,  and  the  said  [surrogate] 
doth  hereby  order  and  decree,  that  the  said  C.  D.  be  and  he 
is  hereby  required  to  deliver  possession  of  the  said  sum  of 
money  [or  of  the  said  property]  to  the  said  petitioner.' 

And  it  is  further  ordered  and  decreed,  that  [insert  pro- 
visions as  to  costs;  see  sections  2556,  etc.,  Code  of  Civil 
Procedure]. 

F.  W.,  Surrogate. 

[Or  as  above  to  (*),  and  from  thence  as  follows :  And  the 
said  C.  D.  having  (by  his  attorney,  G.  IT.),  interposed  a  writ- 
ten answer,  duly  verified,  stating  that  he  is  the  owner  of  tlie 
said  property  (or  is  entitled  to  tlin  ]K)ssessir)n  of  the  said 
l^roperty),  by  virtue  of  a  lien  tliereon"(or  s})ecial  ])roi)erty 

person  to  be  cited  residing  in  another  ence   of   the  decree,  Code  Civ.  Pro., 

county    from    that   of   the   surrogate,  §  2710,  former  5  2714,  which  wiia  con- 

Co.le  Civ.  Pro.,  §  2707.  Hoii.hited  with  §  271H,  Codn  Civ.  Pro., 

'  See  notes  to  form  No.  1459.  and  nvnumhered  §  2710,  liy  fh.  GMd  of 

See,  aa  to  proceedings  for  disohedi-  Laws  of  1893,  and  bee  form  No.  14G2. 


1308  Forms  Relating  to 

therein),  to  wit  (state  lien,  etc.),  it  is  hereby  ordered  and 
decreed,  that  the  above  entitled  proceeding-  be  and  the  same 
is  hereby  dismissed  ;  and  it  is  further  ordered,  that,  etc. 
(insert  anj'^  provisions  for  costs,  as  to  which  see  above).] 

[0?'  as  above  to  (f),  and  from  thence  as  follows :  The  said 
C.  D.  having  given  security,  as  prescribed  by  law,  for  the 
payment  of  the  said  money  {or  for  the  delivery  of  the  said 
property),  and  having  paid  the  costs  awarded  by  the  said 
(surrogate)  to  the  said  x^etitioner,  it  is  hereby  ordered  and 
decreed,  that  the  above  entitled  proceeding  be  and  the  same 
is  hereby  dismissed.'] 


No.  1461. 
Bond  to  Prevent  Decree. 

(Code  Civ.  Pro.,  ^2710.) 

As  in  form  No.  340  to  [*],  and  from  thence  as  fol- 
lows :  That,  whereas,  a  p)roceeding  has  been  taken  in  the 

surrogate's  court  of county  by  A.  B.  [executor  of 

the  will  of],  F.  G.,  late  of' ,  deceased,  for  the  pay- 
ment of  the  sum  of dollars  [or  for  the  delivery  of 

the  following  described  property,  to  wit  (describe  same)], 
to  said  A.  B.  [executor]  as  aforesaid,  by  the  above  bounden 
C.  D.,  as  being  the  money  [or  property]  of  the  said  de- 
cedent ;  and. 

Whereas,  a  decree  is  about  to  be  made  by  said  surrogate 
for  the  payment  of  said  money  [or  the  delivery  of  said 
property]  to  said  [executor]  by  the  said  C.  D. ;  and. 

Whereas,  the  said  C.  D.  desires  to  prevent  the  making  of 
said  decree,  pursuant  to  the  statute  in  such  case  made  and 
provided : 

Now,  therefore,  if  the  above  bounden  C.  D.  shall  pay  to 
the  said  A.  B.  [executor],  as  aforesaid,  or  his  successor,  the 
said  sura  of  money  [or  shall  deliver  to  said  A.  B.  (;execu- 
tor),  as  aforesaid,  or  his  successor,  the  said  property,  or,  in 
default  thereof,  shall  pay  to  said  A.  B.  (executor),  as  afore- 
said, the  full  value  of  the  said  property],  and  shall  pay  to 
the  said  A.  B.  [executor],  as  aforesaid,  all  damages  awarded 

'  As  to  security  to  be  given,  see  Code  Code  of  Civ.  Pro.,  were  consolidated 

Civ.  Pro.,  §}  2710,  2719,  and  form  No.  by  ch.  686  of  Laws   of  1S93,  and  re- 

146j_  numbered  as  section  2710. 

Former   sections  2713  and   2714   of 


SUKROGATES'    CoUKTS.  1300 

against  him,  the  said  C.  D.,  for  withholding  the  said  money 
[or  property],  whenever  it  is  determined,  in  an  action  or 
special  proceeding  to  be  brought  b}^  the  said  A.  B.  [execu- 
tor], as  aforesaid,  or  his  successor,  that  it  belongs  to  the 
estate  of  the  said  F.  G.,  deceased,  then  the  preceding  obli- 
gation to  be  void,  otherwise  to  remain  in  full  force  and 
virtue. 

[Signatures,  etc.,  as  in  form  No.  340] 

Sealed  and  delivered  in  presence  of . 

[Acknowledgment  as  in  form  No.  340.  or  proof  as  in  form 
No.  538;  affidavits  and  approval  as  in  form  No.  340.] 


No.  1462. 
Warrant  to  Seize  Property. 

(Code  Civ.  Pro.,  §2710.) 

[Title  of  proceeding.] 

The  People  of  the  State  of  Nem  York,  to  the  Sheriff  of 

the  County  of [or  to  any  Constable  of  the 

County  of ,  or  to  a  Marshal  of  the  County  of 

]••• 

Whereas  [recite  the  proceedings,  substantially  as  in  form 
No.  1460,  and  proceed  as  follows] ;  and, 

Whereas,  a  decree  was  thereupon  duly  made  by  said  sur- 
rogate, requiring  the  said  C.  D.  to  deliver  the  possession  of 
the  said  property  to  the  said  petitioner  : 

Now,  therefore,  you  are-  hereby  commanded  to  search  for 
the  said  property,  to  seize  it  if  it  is  found  in  the  possession 
of  the  said  C.  D.,  or  his  agent,  or  a  person  deriving  title 
from  him  since  the  presentation  of  the  said  petition,  and 
for  that  jnirpose,  if  necessary,  to  ])rpnk  open  nny  house  in 
the  day-time  ;  and  to  deliver  the  pro])Prty  so  seized  to  the 
said  A.  B.,  the  said  petitioner,  nnd  to  return  this  warrant 
within  sixty  days  hereafter  [before  me].' 

Witness  my  hand  [and  tlie  seal  of  said  surrogate's  court),' 

'  See  provisions  of  Bection  2710,  as  pcate  or  temporary  Burrog'ate  ;  and  aee 

to  how  to  be  made  returnable.     The  note  1  to  form  No.  14G0. 

words  "  before  me  "  are  intended  to  '^  If  the  decree  is  is-suud  by  tlio  nur- 

be  inserted  in  a  case  where  the  isBU*;  rogate  or  teiniwrary  Kuir<>{,'at(i  it  miisl 

is  by  another  oflicer  than    the  miri-o-  1)h  under  llm  Htial  of   the  HMrrojfHl<«'B 


1310  Forms  Relating  to 

at  the of ,  in  the  county  of ,  on 

this day  of ,  18 — ,' 

[L.  s.]  F.  W.,  Surrogate. 

No.  1463. 
Petition  to  Compel  the  llcturn  of  an  Inventory. 

(Code  Civ.  Pro.,  g2716.) 

To  the  Surrogate' s  Court  of  the  County  of  New  York : 

The  petition  of  M.  T.,  of  the  [city]  of ,  respeci- 

fully  shows,  tliat  your  petitioner  is  a  creditor  of  J.-  F.,  late 

of ,  deceased,  intestate,  and  that  there  is  justly  due 

to  him  from  the  estate  of  the  said  deceased,  on  a  promissory 
note  made  by  the  said  J.  F.  in  his  life-time  to  your  peti- 
tioner, the  sum  of dollars,  and  interest  from  the 

day  of in  the  year  18 — . 

Your  petitioner  further  shows,  that  letters  of  administra- 
tion of  all  and  singular  the  goods,  chattels  and  credits  of 

the  said  J.  F.,  deceased,  were,  on  the day  of , 

18 — ,  granted  by  the  surrogate  of  the  county  of to 

P.  F.,  of  the  [city]  of ,  grocer,  the  brother  of  the 

said  intestate  ;  that  more  than  three  months  have  elapsed 
since  the  granting  of  the  said  letters,  and  that  the  said  P.  F. 
has  failed  to  return  an  inventory  of  the  personal  property 
of  the  said  intestate,  and  has  not  obtained  an  allowance  of 
further  time  to  do  so  {or  that  the  said  P.  F.  has  hied  an  in- 
ventory of  the  X)ersonal  property  of  the  said  intestate,  but 
that  the  said  inventory  is  insufficient  (stating  in  what 
respects)]. 

And  your  petitioner  prays,  that  an  order  may  be  made 
requiring  the  said  P.  F.  to  return  an  inventory  of  said  prop- 
erty [or  to  return  a  further  inventory  of  said  property], 
or  in  default  thereof  to  show  cause  why  he  should  not  be 
attached.' 

Dated ,  18—. 

M.  T. 

[Verification  as  in  form  No.  52.] 

court ;  if  by  any  other  officer  it  must  ^  See  In  re  Robbins  (4  Redf.,  144)> 

be  under  his  hand.     (Code  Civ.  Pro.,  In  re  Mclntyre  (4  Redf.,  489),  Green- 

§  2710.)     See  note  1  to  form  No.  1460.  hough  v.  Greenhough  (5  Redf.,  191), 

^  See  note  2  to  form  No.  1462.  Creamer   v.    Waller    (2    Dem.,    351), 


SUEROGATES'    CoURTS.  1311 

No.  1464. 

Order  that  Executor,  etc.,  Return  Inventory,  or  Show 
Cause  why  He  Should  Not  he  Attached. 

(Code  Civ.  Pro.,  §2716.) 

[At,  etc.,  as  in  form  No.  1394.] 
[Title  of  proceeding.] 

On  reading  and  filing  the  petition,  duly  verified,  of  M.  T., 

a  creditor  of  J.  F.,  late  of  the  [city]  of ,  deceased, 

intestate : 

It  is  ordered,  pursuant  to  the  prayer  of  the  said  petition, 
that  P.  F.,  the  administrator  of  all  and  singular  the  goods, 
chattels  and  credits  of  the  said  intestate,  return  an  inventory 
of  the  personal  property  of  the  said,  intestate,  according  to 
law,  or  in  default  thereof  that  he  show  cause  before  me,  at, 
etc.,  on,  etc.,  why  he  should  not  be  attached.' 

F.  W.,  Surrogate. 

No.  1465. 
Petition  by  Creditor  for  Payment  of  His  Claim. 

(Code  Civ.  Pro.,  §  2722,  subd.  1.) 

To  the  Surrogate^  s  Court  of  the  County  of : 

The  petition  of  J.  R.,  of  the  [city]  of ,  merchant, 

respectfully  shows,  [*]  that  your  petitioner  is  a  creditor  of 
J.  T.,  late  of  the  city  of ,  deceased. 

That  he  has  a  valid  claim  against  the  said  deceased,  upon 
a  promissory  note  made  by  the  said  J.  T.  in  his  life-time, 

to  the  order  of  your  petitioner,  dated  the day  of 

,  18 — ,  for dollars,  payable  six  months 

after  date. 


Estate  of  Barnes  (1  Civ.  Pro.  R.,  59),  disobedience  to  an  order  as  prescribed 

Brainard    v.    Birdnall   (2  Dem.,  331).  in  title  twelfth  of  chapter  Heventeenth 

Sections  2715  and  2716  of  Code  Civ.  of    the     Coile    of     Civil     Procedure. 

Pro.,  were  consolidated  by  ch.  686  of  (J  271G,  itl.J     See  note  2  to  foi  in  No. 

Laws  of  1893,  and  renumbered  as  sec-  1463. 

tion  2716.  As  to  these  proceedings,  see  section 

'  Upon  the   return  of  the  order,  if  2457,  id.),  and  forms  Nos.  1190,  1202 

the  delinquent  has  not  filed  a  Bullicient  to  1210,  which  are  to  be    adapted  to 

inventoi-y,  the  surrogate  must  iHSue  a  this  j)ro(;eeilinjf.     See,  almi,  note  1  to 

warrant  of  attachtneiil    aj^aiiiHt    him,  f(irin  No.  13;{7. 

upon  which  the  i)ro(;eedii)fCH    are  the         As  to  dincharffe  of  ])arty,  see,   also, 

same,  as  upon  a  warrant  issued    for  Code  Civ.  Pro.,  J  2716. 


1312  Forms  Relatincj  to 

That  the  said  claim  is  justly  due  and  owing  to  your  peti- 
tioner. 

That  no  payments  have  been  made  thereon,  and  that  there 
are  no  offsets  against  the  same  to  the  knowledge  of  your 
petitioner. 

That  letters  testamentary  of  the  wall  of  the  said  P.  J,, 
deceased,  were  duly  granted  by  the  surrogate  of  the  county 
of  New  York  to  P.  T.,  sole  executor  in  the  said  will  named, 
on  the day  of ,  18 — . 

That  your  petitioner  duly  exhibited  the  said  claim  to  the 
said  executor  under  the  notice  published  by  him  for  the 
exhibition  of  claims,  and  that  he  assented  to  the  justness 
and  correctness  of  the  same. 

That  your  petitioner  has  demanded  payment  of  the  said 
claim  from  the  said  executor,  since  the  expiration  of  one 
year  from  the  time  of  the  granting  of  the  said  letters  testa- 
mentary to  him,  and  that  he  has  neglected  to  pay  the  same. 

Your  petitioner  further  shows,  tlmt  he  is  informed  and 
believes  that  anij)le  assets  for  the  payment  of  all  claims 
against  the  said  J.  T.,  deceased,  have  come  into  the  hands 
of  the  said  P.  T.  as  such  executor  aforesaid,  and  that  there 
is  money,  or  other  personal  property  of  the  said  estate, 
applicable  to  the  payment  or  satisfaction  of  the  petitioner's 
claim,  and  which  may  be  so  applied,  without  injuriously 
affecting  the  rights  of  others  entitled  to  priority  or  equality 
of  payment  or  satisfaction.' 

Wherefore  your  petitioner  prays,  that  a  decree  be  made 

directing  the  said  executor  to  pay  your  petitioner's  said 

claim,  and  that  said  executor  may  be  cited  to  show  cause 

why  such  a  decree  should  not  be  made.' 

Dated ,  18—. 

J.  R. 

[Verification  as  in  form  No.  52.] 


»  See  as  to  this  proceeding,  Baylis  V.  fy'mg  S.  C,  11  Hun,  339),  Matter  of 

Swartwout  (4  Redf.,  395),  Bulkley  v.  Stevenson  (77   Hun,   203),    Oakley  v. 

Staats  (4  i.l  ,  524),   Lambert  v.  Craft  Lamb  (50  id.,  56S),  Kennah  v.  McCol- 

(98  N.  Y.,  342  ;  S.  C,  21  Weekly  Dig-.,  gan  (21  State  Rep.,  326). 

181),    McKeown   v.    Fagan   (4  Redf.,  By   chapter   686   of  Laws  of  1893, 

320),  Archer  v.  Furniss  (4  id.,  88),  Stil-  sections  2717  and  2718,  Code  Civ.  Pro., 

well  V.  Carpenter  (2  Abb.  N.  C,  238),  were  consolidated  and  renumbered  as 

Thompson  v.  Taylor  (71  N.  Y.,  217),  §  2722. 
McNulty  V.  Hurd  (72  id.,  518  ;  modi- 


Surrogates'  Courts.  1313 

No.  1466. 
Order  for  Citation  on  the  Above  Petition. 

(Code  Civ.  Pro.,  §  2722.; 

[At,  etc.,  as  in  form  No.  1394.] 
[Title  of  proceeding.] 

On  reading  and  filing  the  petition  of  J.  R.,  of , 

merchant,  a  creditor  of  J.  T.,  late  of  the  [city]  of , 


deceased,  setting  forth  that  he  has  a  just  claim  against  the 
said  deceased : 

It  is  ordered,  that  a  citation  issue  to  P.  T.,  executor  of 
the  will  of  the  said  J.  T.,  deceased,  requiring  him  to  appear 

in  this  court,  on  the day  of  instant,  at 

o'clock  in  the noon  of  that  day,  and  show 

cause  why  a  decree  should  not  be  made  directing  the  pay 
ment  of  the  said  debt  or  claim  against  him.' 

F.  W.,  Surrogate. 

No.  1467. 

Citation  to  Executor  to  Show  Cause  why  Payment  of  Claim 
Should  Not  he  Decreed. 

(Code  Civ.  Pro.,  §  2722.) 

As  in  general  form  of  citation.  No.  1345,  directing  the 
same  to  P.  T.,  the  executor  of  the  will  of  P.  T.,  late  of 

,  deceased,  and  inserting  therein  as  the  purpose  of 

the  citation  as  follows  :  To  show  cause  why  a  decree  should 
not  be  made  by  the  said  surrogate  directing  the  payment 

by  you  of  the  debt  or  claim  of  J.  R.,  of  the  [city]  of , 

merchant,  against  the  said  J.  T.,  deceased,  upon  an  alleged 
promissory  note  made  by  the  said  J.  T.  in  his  life-time  to 
the  order  of  the  said  J.  R.  for dollars. 


No.  1468. 
Answer  of  Executor  to  Petition  for  Payment  of  Claim. 

(Code  Civ.  Pro.,  g  2722,  subd.  1.) 

[Title  of  proceeding.] 
The  answer  of  P.  T.,  executor  of  tlie  will  of  J.  T.,  late  of 

'  See  note  1  Ui  IuhI  fcjriii  N(t.  IJO."). 

165 


1314  Forms  Relating  to 

the  [city]  of ,  deceased,  to  the  petition  of  J.  E..,  in 

the  above  entitled  proceeding,  respectfully  shows  [npon 
information  and  belief] : 

First.  Said  executor  denies  that  he  has,  or  has  had,  as 
executor  of  the  will  of  P.  T.,  deceased,  sufficient  assets  in 
his  hands  to  jmy  the  claims  against  said  estate,  or  to  pay  the 
amount  claimed  in  said  petition,  as  due  from  the  said  estate 
of  P.  T.,  deceased,  without  injuriously  affecting  the  rights 
of  others  entitled  to  priority  or  equality  payment  with  the 
said  petitioner,  and  denies,  upon  information  and  belief,  that 
the  said  P.  T.  was  indebted,  at  the  time  of  his  death,  upon 

said  promissory  note  in  the  amount  of dollars,  or  in 

any  other  sum  whatever,  and  he  alleges  that  said  claim  has 
been  wholly  paid  [or  insert  other  denials  as  may  be  neces- 
sary]. 

Second.  And  the  said  executor  alleges,  that  it  is  doubtful 
whether  the  said  alleged  claim  mentioned  and  set  forth  in 
the  said  petition  is  valid  and  legal. 

That  [here  set  forth  the  facts  which  show  that  it  is 
doubtful]. 

And  the  said  executor  denies  the  validity  and  legality  of 
the  said  claim  [upon  information  and  belief], 

"Whereupon  the  said  executor  prays,  that  a  decree  be  made 
dismissing  the  said  jDetition  [with  costs],'  without  prejudice 
to  an  action  or  an  accounting  in  behalf  of  the  petitioner.* 
M.  N".  [Attorney  for  P.  J.,  Executor^  etc.], 
[Office  address.'] 

[Verification  as  in  forms  Nos.  151.] 

'  Generally  as  to  costs  in  surrogates'  ton  (1  Dem.,  27),  Matter  of  Charlick 

courts,  see  Code  Civ.  Pro.,  §§  2556,  (1  Dem.,  34;  S.  C,  11  Abb.  N.  C,  56), 

etc.  Estate  of  McKieruan  (4  Civ.  Pro.  R., 

2  An  oral  plea  of  a  general  denial  in  218),  Fiester  v.   Shepard  (92  N.  Y., 

answer  to  the  petition,  is  ineffectual  for  251),   Tilden  v.   Dows  (3  Dem.,  240), 

an}'  purpose.     (Lambert  v.   Craft,  98  Rank  v.  Camp  (3  Dem.,  278),  Budlong 

KY.,343:  S.  C,  21  Week.  Dig.,  181.)  v.  Clemens  (3  Dem.,  145),  Lynch  v. 

See,  further,  as  to  rules  of  pleading  Patchen  (3  id.,  58),  Matter  of  Corbett 

upon  the  application,  Lambert  V.  Craft  (90   Hun,    182),    Matter   of  Odell   (52 

(supra),  Stihvell  v.  Carpenter  (2  Abb.  Hun,  88). 

N.   C,   238),    Steinele   v.   Oechsler  (5        The  surrogate  has  no  power  to  direct 

Redf.,  312),   Hurlburt  v.   Durant  (88  the  payment  of  a  claim  created  by  the 

K   Y.,   121;    S.    C,   2   Civ.    Pro.    R.  executor.      His    jurisdiction    extends 

pBrowne],  115),  Mumford  v.  Codding  only  to  claims   against  the  deceased. 

(Bulkley  v.  Staats,  4  Redf.,  524.) 
'  See  note  2  to  form  No.  122. 


Surrogates'  Courts.  1315 

No.  1469. 
Decree  Dismissing  Petition,  etc.,  on  Filing  of  Answer. 

(Code  Civ.  Pro.,  §  2722.) 

[At,  etc.,  as  in  form  No.  lc>94.] 
[Title  of  proceeding.] 

The  citation  heretofore  issued  in  the  above  entitled  mat- 
ter, upon  the  duly  veriiied  petition  of  J.  R.,  dated -, 

18 — ,  for  payment  of  his  alleged  claim  against  the  said  estate 
of  P.  T.,  deceased,  having  been  returned  with  proof  of  due 
service  upon  J.  T.,  the  executor  of  the  will  of  said  P.  T.,  and 
said  executor  having  appeared  upon  the  return  of  said  cita- 
tion by  M.  N.  as  his  attorney,  and  the  said  i)etitioner  having 
also  appeared  upon  the  return  of  said  citation  by  J.  B.  as 
his  attorney,  and  the  said  api)lication  having  been  thereupon 
adjourned  to  this  day,  and  the  said  executor  having  now 
apx)eared  by  his  said  attorney  and  filed  his  written  answer 
to  said  petition,  duly  verified,  setting  forth  facts  showing 
that  it  is  doubtful  whether  the  said  petitioner's  claim  is 
valid  and  legal,  and  denying  its  validity  and  legality  [upon 
information  and  belief]  [or  it  not  having  been  proved  to  the 
satisfaction  of  this  surrogate  tliat  there  is  money  or  other 
personal  property  of  the  estate  of  said  P.  T.,  applicable  to 
the  payment  of  the  petitioner's  claim,  and  which  may  be  so 
applied,  without  injuriously  affecting  the  rights  of  others, 
entitled  to  priority  or  equality  of  payment  or  satisfaction], 
and  after  hearing  counsel  for  the  respective  parties : 

It  is  hereby  ordered,  that  the  said  petition  be  and  the 
same  is  hereby  dismissed  without  prejudice  to  an  action  or 
an  accounting  in  behalf  of  the  petitioner. 

[And  it  is  further  ordered,  that  said  executor  render  an 
account  of  his  proceedings  as  such,  and  attend  before  the 

surrogate  on  the day  of ,  18 — ,  at 

o'clock  in  the noon,  for  the  purpose  of  siiid  ac- 
counting.'] 

F.  W.,  Surrcxjale. 

'  See  Code  Civ,  Pro. ,  §  2725,  subds.  8  and  4,  as  to  accounting. 


1316  Forms  Relating  to 

No.  1470. 
Decree  for  Payment  of  a  Claim. 

(Code  Civ.  Pro.,  §2722.) 

[At,  etc.,  as  in  form  No.  1394.] 

[Title  of  proceeding.] 

J.  R.,  of  tlie  [city]  of ,  merchant,  having  hereto- 
fore presented  his  petition,  duly  verified,  to  the  surrogate's 

court  of  the  county  of ,  dated ,  18 — ,  and 

setting  forth  that  he  had  a  valid  claim  against  J.  T.,  late  of 

the  [city]  of ,  deceased,  upon  a  promissory  note 

made  by  the  said  J.  T.,  in  his  life-time,  to  the  order  of  the 

said  petitioner,  dated  the day  of ,  18 — , 

foi- dollars,  payable  six  months  after  date,  and  pray- 
ing a  decree  against  P.  T.,  the  executor  of  the  w^ill  of  the 
said  J.  T.,  deceased,  for  payment  of  the  said  claim  ;  and 
the  said  executor  having  been  duly  cited  to  appear  on  the 

day  of last  past,  and  show  cause  why  such 

payment  should  not  be  decreed,  and  the  said  P.  T.  having 
appeared  and  having  assented  to  the  said  claim  of  the  said 
J.  R.,  and  having  produced  and  filed  an  account  as  such 
executor ;  and  the  said  matter  having  been  heard  on  sev- 
eral days  and  duly  adjourned  to  this  day  ;  and  it  appearing 
from  the  said  account,  and  from  tlie  said  proofs  herein 
taken,  that  there  are  in  the  hands  of  the  said  P.  T.,  as  such 
executor  as  aforesaid,  of  the  said  estate  of  the  said  J.  T., 
deceased,  assets  to  the  amount  of  two  thousand  seven  hun- 
dred and  twenty-five  dollars,  and  that  the  debts  and  out- 
standing liabilities  of  the  said  deceased  do  not  exceed  the 
sum  of  one  thousand  seven  hundred  dollars : 

It  is  ordered  and  decreed,  and  the  surrogate  of  the  county 

of ,  by  virtue  of  the  power  in  him  vested,  doth  order 

and  decree,  pursuant  to  the  statute  in  such  case  made  and 
provided,  that  the  said  P.  T.,  executor  as  aforesaid,  pay  to 
the  said  J.  R.  the  full  amount  of  his  said  claim  and  interest, 

amounting  in  the  whole  to  the  sum  of dollars  and 

cents. 

And  it  is  further  ordered,  that  the  said  P.  T.  [personally] 


Surrogates'  Courts.  1317 

pay  the  said  J.  R.  the  sum  of ,  for  his  costs  and 

disbursements  in  this  j)roceeding.' 

F.  W.,  Surrogate. 


No.  1471. 
Petition  for  Payment  of  a  Legacy. 

(Code  Civ.  Pro.,  §  2722.) 

As  in  form  No.  1465  to  [*],  and  from  thence  as  follows : 
That  your  petitioner  is  a  legatee  under  the  will  of  J.  T.,  late 

of  the  city  of ,  deceased  ;  that  the  said  will  was  duly 

proved  before  the  surrogate  of  the  county  of and 

admitted  to  probate  by  said  surrogate  and  recorded  in  his 

office  on  the day  of ,  IS — ,  and  that  letters 

testamentary  thereof  were,  on  the  samo  day,  duly  granted 
and  issued  to  P.  T.,  of . 

That  in  and  by  said  will  the  said  J.  T.  did  give  and  be- 
queath to  your  petitioner  the  sum  oi dollars. 

Your  petitioner  farther  shows,  that  ample  assets  of  the 
estate  of  said  testator,  for  the  payment  of  all  his  debts  and 
for  the  discharge  of  all  the  specific  r.nd  general  legacies  given 
by  his  said  will,  have  come  into  the  hands  of  the  said  P.  T. 
as  such  executor  aforesaid  ;  and  that  there  is  money  or  other 
personal  property  of  the  said  estate  appli-^able  to  the  pay- 
ment [or  satisfaction]  of  your  petitioner's  legacj^  and  which 
may  be  so  applied  without  injuriously  affecting  the  rights 
of  others  entitled  to  priority  or  equality  of  payment  or 
satisfaction.* 

[Your  petitioner  further  shows,  that  he  is  in  indigent  cir- 
cumstances, and  that  an  advance  of  (a  portion  of)  said  I'egacy 
is  necessary  for  his  sux:)port.'] 

Wherefore  your  petitioner  prays  for  a  decree  directing 
the  said  executor  to  pay  said  legacy,  or  its  just  jiropor- 
tionate  part  [or  a  portion  of  said  legacy,  to  the  amount  of 

dollars,  as  necessary  for  his  support,  upon  the  filing 

of  a  bond  approved  by  the  surrogate.,  as  required  by  law, 
for  the  return  of  such  portion,  with  interest,  whenever  re- 

'See,  as  to  costs,  sections  2556,  etc.,  amended  l>y  ch.  686  of  Laws  of  1893, 

Code  Civ.  Pro.  1)i'iii>,'   fuiini-r  m'ctiou    27111    (i<l.).   this 

"See  section    2722,  Code  Civ.  Pro.,  fact  inusl  a|)|K-iir,  wlini!  tin-  a|iplicH- 

Butxl.  2.  tidii  JH  niaiie    ln-foi'i;  (hi*  i-xpinitioii  of 

'  By  section  2723,  Code  Civ.  Pro.,  as  a  year  from  the  issuiny  of  lettors. 


1318  Forms  Relating  to 

quired],'  and  that  said  executor  may  be  cited  to  show  cause 
why  such  a  decree  should  not  be  made.* 
Dated ,  18—. 

J.  R. 

[Verification  as  in  form  No.  52.] 


No.  1472. 
Decree  for  Payment  of  Legacy. 

(Code  Civ.  Pro.,  §§  2122,  2723.) 

[At,  etc.,  as  in  form  No.  1394.] 

[Title  of  proceeding.] 

J.  R.,  of  the  [city]  of ,  a  legatee  under  the  will 

of  J.  T.,  late  of  the   [city]  of ,  deceased,   having 

heretofore,  and  on  the day  of ,  18 — ,  pre- 
sented to  the  surrogate' s  court  of  the  county  of , 

his  duly  verified  j)etition,  dated ,  18 — ,  praying  for 

a  decree  directing  P.  F.,  the  executor  of  said  will  to  pay 

the  legacy  of dollars  given  and  bequeathed  to  said 

petitioner  in  and  by  said  will,  or  its  just  proportional  part 

[or  to  pay  a  portion  of  the  legacy  of dollars  given, 

etc.,  to  the  amount  of dollars,  as  necessary  for  his 

support],'  and  that  said  executor  might  be  cited  to  show 
cause  why  such  a  decree  should  not  be  made  ;  and  a  citation 
having  been  thereupon  duly  issued  by  the  surrogate  of  said 
county,  requiring  said  executor  to  show  cause  before  him  at, 
etc.,  on,  etc.,  why  such  a  decree  should  not  be  made,  and  said 
citation  having  been  returned  with  proof  of  due  service 
thereof  upon  the  said  P.  T.,  and  [recite  appearances,  etc.], 
and  [it  appearing  that  the  amount  of  money  and  the  value 
of  the  other  property,  in  the  hands  of  the  said  executor, 
applicable  to  the  payment  of  debts,  legacies  and  expenses, 
exceed,  by  at  least  one-third,  the  amount  of  aU  known  debts 
and  claims  against  the  said  estate,  of  all  legacies  which  are 

'See  BecUon  2723,  Code  Civ.  Pro.,  man  v.  Vanderveer  (3  id.,  221),  Mat- 
as  to  bond,  etc.  ter  of  Paton   (7  Misc.,  377),  Matter  of 

''See  fcenerally  as  to  this  proceed-  McClouth,  (9  id.,  385),  Matter  of  Tra- 
in^ Matter  of  Hoyt  (31  Hun,  176;  vis  (10  id.,  298  ;  aff'd  S.  C,  85  Hun, 
8.  C,  18  Week.  Dig.,  360),  Matter  of  420).  Matter  of  Peaslee  (81  Hun,  595), 
Hedding  Meth.  Ep.  Cliurch  (35  Hun,  Matter  of  Mansfield  (7  Misc.,  383), 
315),  Matter  of  Macanlay  (04  N.  Y.,  Matter  of  Alexander  (83  Hun,  147). 
574),  Estate  of  Reigelmann  (2  Civ.  Former  sections  2717  and  2718  of  Code 
Pro.  [Browne],  98;  S.  C,  2  Dem.,  86),  Civ.  Pro.,  were  consolidated  by  ch. 
Tuttle  V.  Heidermann  (5  Redf.,  199),  686  of  Laws  of  1893  and  renumbered 
Peyser  v.  "Wendt  (2  Dem.,  221),  Beek-  as  section  2722. 


Surrogates'  Courts.  131^ 

entitled  to  priority  over  the  said  petitioner's  claim,  and  of 
all  legacies  or  distributive  sliares  of  the  same  class  ;  and 
that  the  payment  of  ( dollars  of)  said  legacy  is  neces- 
sary for  the  support  of  the  said  petitioner] :  * 

It  is  ordered  and  decreed  by  this  court,  and  the  said  sur- 
rogate doth  order,  decree  and  allow,  that  the  said  P.  T., 
executor  as  aforesaid  [advance  and],  pay  to  the  said  J.  R. 

[a  portion  of]  his  said  legacy  [to  the  amount  of 

dollars]  [upon  the  filing  of  a  bond  by  said  J.  R.,  approved 

by  the  said  surrogate,  in  the  penalty  of dollars, 

with  two  sufficient  sureties,  conditioned  as  prescribed  by 
law,  with  respect  to  a  bond  which  an  executor,  or  an  admin- 
istrator with  the  will  annexed,  may  require  from  a  legatee 
upon  payment  or  satisfaction  of  a  legacy,  before  the  expi- 
ration of  one  year  from  the  time  when  letters  were  issued, 
pursuant  to  a  direction  to  that  effect  contained  in  the  will].' 

And  it  is  further  ordered  and  decreed,  that  the  said  J.  R. 
pay  the  costs  and  disbursements  of  this  proceeding,  to  wit : 
the  sum  of dollars. 


No.  1473. 
Bond  by  Legatee  on  Application  within  a  Year. 

(Code  Civ.  Pro.,  §  2721.) 

Know  all  men  by  these  presents,  that  we,  H.  T.,  of  the 

[city]  of  ,  grocer,  and  G.   S.,  of  the  same  place, 

saddler,  and  J.  B.,  of  the  same  place,  cooper,  are  held  and 
firmly  bound  unto  P.  F.,  the  executor  of  the  will  of  J.  T., 

late  of  the  [city]  of ,  deceased,  in  the  sum  of  six 

hundred  dollars,  to  be  paid  to  the  said  P.  T.  as  such  execu- 

*  This  clause  in  brackets  relates  to  by  excluding-  the  amount  of  the  peti- 

the  provisions  of  section    2723,    Code  ticnier's  claim,  and  jpaymenlH  ulrea<iy 

Civ.  Pro.,  when  the  application  is  made  made.    (Tuttle  v.  Heidermann,  &Redf., 

within  one    year  fioin  the  issuing'  of  I'Jt).) 

Ietter3.     As  to  the  bond  lequiied  in        See,  also.  In  le  Hoyt  (18  Week.  Dig., 

such    case,  see    that  8''.(;l ion,  and   see  300;   S.   C,  31    Hun,    17(J),    Estate  of 

section   44,  p.  2300  (7th  ed.),    R.    8.;.  Ilcigehnaini  (-UCiv.  Pro  [Brown.-],  98), 

Birdseye's  Rev.  Stats.,  etc.,  il33,  and  Hoyt  v.  Jackson  (I  Dem.,  Gr)3),  Ketel- 

next  foi-in.    No.   1473,  and  Coile   Civ.  tas  v.  Gr«!en   (!•  Hun,  hWSi),  IJaiiies  v. 

Pro.,  §  2721.     Section  44.  2  R.  S.,  00,  IJarncs    (13    Hun,  233),  Lo.-kwood  v. 

was  repealed  by  ch.    G86  of  Laws  of  Lockwood  (3    Rcdf.,  330),  La  13au  v. 

1893.  Vatid.M-biJt  (3  Redf.,    3S4,  414).  as  to 

The  required  bui-J)1uh  of  one-third,  api)lication  under  former  Beclion  2719, 

under  that  section,  is  to  be  estimated.  Code  Civ.  Pro.,  pi-esent  sei-tion  2723. 


1320  FoiiMS  Relating  to 

tor  aforesaid,  or  to  his  certain  attorney,  successor  or  assigns; 
to  which  payment  well  and  truly  to  be  made  we  bind  our- 
selves, our  and  each  of  our  heirs,  executors  and  administra- 
tors, jointly  and  severally,  lirmly  by  these  presents. 

Sealed  with   our  seals   and   dated   the  day  of 

,  18-. 

Whereas,  the  said  J.  T.,  in  and  by  his  will,  did  give  and 
bequeath  to  the  said  H.  T.  the  sum  of  one  thousand  dollars ; 
and, 

Whereas,  the  said  legatee  has  lately  applied  to  the  surro- 
gate's court  of  the  county  of ,  previous  to  the  expi- 
ration of  one  year  from  the  granting  of  letters  testamentary 
to  said  executor,  for  a  decree  directing  the  payment  by  said 
executor  of  a  portion  of  the  said  legacy  to  the  amount  of 

dollars,  as  necessary  for  his  support ;  and  such 

proceedings  having  been  thereupon  had  that  on  the 

day  of ,  18 — ,  a  decree  was  made  by  the  surrogate 

of  said  county  directing  the  payment  to  the  said  J.  T.  of  a 
portion  of  his  said  legacy  upon  his  filing  a  bond  as  required 
by  said  order. 

Now,  the  condition  of  this  obligation  is  such  that  if  any 
debts  against  the  said  deceased  shall  duly  appear,  and  which 
there  shall  be  no  other  assets  to  pay,  and  there  shall  be  no 
other  assets  to  pay  other  legacies,  or  not  sufficient,  and  the 
said  H.  T.  shall  refund  the  legacy  so  paid,  or  such  ratable 
proportion  thereof,  with,  the  other  legatees,  as  may  be  neces- 
sary for  the  payment  of  the  said  debts,  and  the  projDortional 
parts  of  such,  other  legacies,  and  the  costs  and  charges  in- 
curred by  reason  of  the  said  payment  to  him,  and  if  the 
probate  of  the  said  will  shall  be  revoked,  or  the  will  be 
declared  void,  and  the  said  H.  T,  shall  refund  the  whole 
of  the  said  legacy,  with  interest,  to  the  executor  or  admin- 
istrator entitled  thereto,  then  this  obligation  to  be  void, 
otherwise  to  remain  in  full  force  and  virtue. 

H.  T.      [L.  s.] 
G.  S.      [L.  s.] 

J.  B.        [L.  s.] 

Sealed  and  delivered  in  presence  of . 

[Acknowledgment  as  in  form  No.  340,  or  proof  as  in  form 
No.  538,  affidavits  and  approval  as  in  form  No.  840.] 


Subrogates'  Courts.  1321 

No.  1474. 

Petition  on  Failure  of  Executor,  etc.,  to  set  Aside  Exempt 

Property. 

(Code  Civ.  Pro.,  §2734.) 

To  the  Surrogate^  s  Court  of  the  County  of / 

The  petition  of  A.  B.,  of ,  respectfully  shows,  that 

on  the day  of ,  18 — ,  the  will  of  C.  D.,  late 

of ,  deceased,  was  duly  admitted  to  probate  by  the 

surrogate  of county,  and  on  the  same  day  letters 

testamentary  thereupon  were  issued  to  J.  F.,  of , 

who  duly  qualified  and  entered  upon  the  discharge  of  his 
duties  as  such  executor  \or  set  forth  issue  of  letters  of  ad- 
ministration upon  the  estate]. 

That  your  petitioner  is  the  Avidow  [etc.]  of  the  said  C.  D. 

That  [here  set  forth  facts  showing  the  failure  of  executor 
to  set  apart  property  for  the  petitioner]. 

Wherefore  your  petitioner  prays  for  a  decree,  requiring 
such  executor  \or  administrator]  to  set  apart  the  property 
from  said  estate  for  the  benefit  of  your  petitioner,  as  is  pre- 
scribed by  law  ;  or,  if  it  has  been  lost  or  injured  or  disposed 
of,  to  pay  the  value  thereof  or  the  amount  of  injury  thereto, 
and  that  the  said  executor  may  be  cited  to  show  cause  why 
such  a  decree  should  not  be  made.' 

Dated ,  18—. 

A.  B. 

[Verification  as  in  form  No,  62.] 


Article  Second, 
forms  relating  to  accounting,  and  settlement  of  the 

ESTATE. 

(Code  Civ.  Pro.,  Ch.  18,  Tit.  4,  Art.  2.) 

No.   1475.     Petition  for  judicial  settlement  of  account  of  executor  or  adminis- 
trator. 

1476.  Order  to  account  upon  return  of  citation. 

1477.  Petition  by  executor,  etc.,  for  judicial  .settlement  of  liis  account  on 

return  of  citation. 

1478.  Order  that  citation  issue  to  creditors,  etc.,  on  petition  of  cxrcutor, 

etc.,  for  judicial  settlement  of  hia  account. 


'  See  section  2724,  Code  Civ.   Pro.,     upon  the  judicial  settlement  of  the  ae- 
that  the  same  relief  may  be  obtained     count  of  an  executor  or  ndminiHlnifor. 
IGC 


1322  Forms  Relatittg  to 

No.  1479.  Petition  of  executor,  etc.,  after  expiration  of  a  year  for  an  ac- 
counting, he  not  having  been  cited. 

1480.  Administrator's,  etc.,  account. 

1481.  Affidavit  of  executor,  etc.,  to  account. 

1482.  Account  of  executor  or  administrator  on  final  settlement. 

1483.  Decree  for  payment  and  distribution. 


No.  1475. 

Petition  for  Judicial  Settlement  of  Account  of  Executor 
or  Administrator. 

(Code  Civ.  Pro.,  §  2727.) 

To  the  Surrogate's  Court  of  the  County  of : 

The  petition  of  A.  B.,  of  the  [city]  of ,  respect- 
fully shows,  that  your  petitioner  is  a  creditor  of  C.  D.,  late 

of  the  [city]  of '—^  deceased,  said  A.  B.  having  been 

indebted  to  him  at  the  time  of  his  death  upon  [state  nature 
of  indebtedness]  [or  show  how  otherwise  interested  in  the 
estate]. 

That  letters  testamentary  upon  the  will  of  said  C.  D.  were 

duly  issued  to  E.  F.,  of [more  than  one  year  since, 

and],  on  the day  of ,  18—,  by  the  surro- 
gate of county,  said  will  having  been  admitted  to 

probate  by  said  surrogate  on  that  day  [or  that  letters  of  ad- 
ministration of,  etc.,  of  said  C.  D.,  were  duly  issued  to  E.  F., 

of  ,  by  the  surrogate  of county,  on  the 

day  of ,  18— ].i 

[That  said  letters  have  been  revoked  by  a  decree  of  said 

surrogate,  made  and  entered  on  the day  of , 

18 —  [or  show  how  otherwise  his  powers  have  ceased].' 

[That  a  decree  for  the  disposition  by  said  executor,  etc., 
of  (an  interest  in)  real  property  was  made  by  said  surro- 
gate on  the day  18—,  as  prescribed  in  title  fifth  of 

chapter  eighteenth  of  the  Code  of  Civil  Procedure,  and  that 
the  said  real  property  {or  interest  in  real  property),  or  a 
part  thereof,  has  been  disposed  of  by  said  executor  {or  ad- 
ministrator), pursuant  to  the  said  decree].' 

>  See  subd.  1  of  section  2726.  Code  »  See  subd.  3  of  section  2736,  Cod« 
Civ.  Pro.  Civ.  Pro. 

«  See  subd.  2  of  section  2726,  Code 
Civ.  Pro. 


Surrogates'  Courts.  1323 

[That  the  said  E.  F.  has  sold  {or  state  how  otherwise  dis- 
posed of),  as  such  executor  {or  administrator),  a  portion  of 
said  decedent's  real  property  {or  a  devisable  interest  in 
the  said  decedent's  real  property  ;  or  the  rents  and  profits, 
or  proceeds,  of  certain  real  property  of  decedent),  to  wit 
(describe  same),  pursuant  to  a  power  contained  in  the  said 
decedent's  will.'] 

Wherefore  your  petitioner  prays  for  a  judicial  settle- 
ment of  the  account  of  the  said  E.  F.,  as  such  executor  [or 
administrator],  and  that  the  said  executor  [etc.]  may  be 
cited  to  show  cause  why  he  should  not  render  and  settle  his 
account.' 

Dated ,  18—. 

A.  B. 

[Verification  as  in  form  No.  52.] 


No.  1476. 
Order  to  Account  upon  Return  of  Citation. 

(Code  Civ.  Pro.,  §2728.) 

[At,  etc.,  as  in  form  No.  1394.] 

[Title  of  proceeding.] 

The  petition  of  A.  B.,  of  the  [city]  of ,  a  creditor 

of  the  estate  of  C  D.,  late  of ,  deceased,  duly  veri- 
fied, and  dated ,  18 — ,  having  been  heretofore  duly 

filed  in  the  above  entitled  proceeding,  praying  for  a  judicial 
settlement  of  the  account  of  E.  F.,  as  executor  of  the  will 
[or  as  administrator  of,  etc.]  of  said  C.  D.,  and  a  citation 
having  been  thereupon  issued  directed  to  said  executor,  and 
requiring  him  to  show  cause  on,  etc.,  at,  etc.,  why  he  should 

'  See  subd.  4  of  section  2726,  Code  One  entitled  to  a  remainder,  after  a 

Civ.  Pro.     The  application  under  IhiH  life  estate  f,'-iven  l)y  a  will,  is  a  "  person 

Bul>division  cannot  be  made   until  one  interested    in   the    estate,"  within   the 

year  has  elapsed eince  the  letters  wei-e  ine,aniiif,'-(if  section  272i)  (lorinerly,  now 

issued.     (Id.)  section  2727),  Code  Civ.  I'ro.     (Cainp- 

*  Aa  to   powers  of  surrog-ate   upon  bell  v.  Purdy,  5  Redf.,  434.) 

final    accounting  of  executoi-s  to  pass  Kee,  also,   Kdwaids  v.    I'Mwartls  (I 

upon  the  validity  and  interpretation  of  Deni  ,    132).    Sc.hlef,'el    v.    Winckel    (2 

the  various  provisions  of  the  will,  hbij  id.,  232),   Matter  of  Macaulay  (04  N. 

In  re  Verplanck  (27  Hun,  409),  Ferrer  Y.,  574).  RLitter  of  H.-u.s<'r  (S7   Jlun, 

V.  Pyne  (81  N,  Y,,  281),  and  see  note  262),   .Matter  of    De  I'ienis    (7'.t  Ilnn. 

1,  p.  1246.  277).  Matter  of  Ayrault  (SI  id.,  107), 


Surrogates'  Courts. 


1323a 


Estate  of  Metcalfe  (6  Misc.,  524),  Mat- 
ter of  Havens  (8  iii.,  574),  Matter  of 
Perkins  (75  Hun,  129),  Matter  of  Mon- 
roe (142  N.  Y.,  484),  Matter  of  Hurd 
(6  Misc.,  171),  Matter  of  Lang  (144  N. 
Y.,  275,  rev'g  S.  C,  67  Hun,  107).  Mat- 
ter of  Hodgman  (82  Hun.  419),  Matter 
of  Smith  (89  id.,  606).  Matter  cf  Ship- 
man  (82  Hun,  103),  Matter  of  Heuser 
(87  id.,  262),  Matter  of  Patterson  (146 
N.  Y.,  327,  aff' g  S.  C.  79  Hun,  371), 
Washbon  v.  Cope  (144  id.,  287,  rev'g  S. 
C,  67  Hun,  272),  Matter  of  Winslow  (12 
Misc.,  254),  Barker  v.  Laney  (90  Hun, 
108).  Baldwin  v.  Smith  (91  Hun,  230), 
Matter  of  French   (52  id.,  303),  Van 


Valkenburgh  v.  Lasher  (53  id.,  594), 
In  re  Laramie  (6  N.  Y.  Supp.,  173), 
Matter  of  Niles  (113  N.  Y.,  547),  Mat- 
ter of  Whitehead  (3  Dem.,  227),  Matter 
of  Halsey  (13  Abb.  N.  C,  353),  Merritt 
V.  Jackson  (2  Dem.,  214),  Farmers' 
Loan  and  Trust  Co.  v.  McKenna  (3 
Dem.,  219),  Matter  of  Seabra  (38  Hun, 
218),  Smith  v.  Baylis  (3  Dem.,  567), 
Chatfield  v.  Hewlett  (2  Dem.,  191), 
Matter  of  Hurlburt  (43  Hun,  311), 
Spencer  v.  Popham  (5  Redf.,  425), 
Matter  of  Underhill  (117  N.  Y.,  471), 
Foulks  v.  Foulks  (42  State  Rep.,  1038), 
Matter  of  Lawrence  (26  State  Rep., 
238),  Matter  of  Hodgman  (31  id.,  479). 


1324  Forms  Relating  to 

not  render  anci  settle  his  said  account,  and  said  citation 
having  been  returned  with  due  j)roof  of  service  thereof 
upon  said  E.  F.,  and  said  executor  having  [*J  failed  to  ap- 
appear  at  said  time  and  place  at  which  said  citation  was 
returnable  [o?'  having  apjDeared  at  said  time  and  place  (by 

,  as  his  attorney),  but  having  failed  to  show  cause 

to  the  contrary  (or  to  present  and  file  a  written  petition, 
duly  verified,  j^raying  that  his  account  may  be  judicially 
settled,  and  that  the  x^roper  persons  may  be  cited  to  attend 
such  settlement)'] : 

Now,  upon  the  application  of  M.  G.,  attorney  for  said 
petitioner,  after  hearing,  etc. : 

It  is  hereby  ordered,  that  said  E.  F.,  render  an  account  of 

Jiis  proceedings  as  such  [executor]  on  the day  of 

,  18 — ,  at,   etc.,   and  attend  before  the  surrogate 

on  that  day,  and  from  time  to  time,  for  the  purpose  of  his 

jaccounting  as  such  [executor].'' 

F.  W.,  Surrogate. 

No.  1477. 

Petition  by  Executor,  etc.,  for  Judicial  Settlement  of  His 
Account  on  Return  of  Citation. 

(Code  Civ.  Pro.,  §i^  2728,  2729.) 

To  the  Surrogate' s  Court  of County : 

The  petition  of  E.  F.,  of ,  respectfully  shows, 

That  he  was  duly  qualified  and  appointed  by  the  surrogate 

of  the  county  of as  the  executor  of  the  will  of  C.  D., 

late  of  the  [city]  of ,  deceased,  on  the day 

of in  the  year  18 — ,  and  that  one  year  and  upwards 

has  expired  since  said  ajopointment. 

And  your  petitioner  further  shows,  that  immediately  after 
his  appointment  as  such  executor  he  entered  upon  the  dis- 
charge of  his  duties  as  such  executor. 

And  your  petitioner  further  shows,  that  so  far  as  the  same 
can  be  ascertained  by  him  the  names  of  the  creditors,  or 

>  Insert  this  clause  in  parenthesis,  executor,  etc  ,  where,  in   response  to 

where  a  year  has  expired  since  the  let-  the  citation,  the  latter  files  his  account, 

ters  were  issued.     (Code   Civ.    Pro.,  (Schlegel  v.  Winckel.  2  De^-;  23J.) 

65  ''■''T   27''S  )  ^66,  as  to  filing-  supplementary  ob« 

^Vformal  order  need  not  be  entered  jections  to  accounting,  Matter  of  Tur- 

granting  a  ci-editor's  petition  for  the  fier  (78  Hun,  258). 
judicial  settlement  of  the  account  of  an 


Surrogates'  Courts.  1325 

persons  claiming  to  be  creditors,  of  tlie  said  decedent  [and 
places  of  residence]  are  as  follows,  to  wit  [state  same]  ;  that 
the  name  of  the  husband  [or  wife]  of  said  decedent  is  J.  D, 

[who  resides  at ],  and  that  the  names  [and  places 

of  residence]  of  the  next  of  kin  [and  legatees]  of  said  de- 
cedent are  as  follows,  to  wit  [state  same].'  [*] 

That  he  has  been  required  by  the  surrogate  of 

county  to  render  an  account  of  his  proceedings  as  such 
executor,  and  that  he  desires  to  have  his  said  account 
finally  settled. 

Your  petitioner,  therefore,  prays,  that  his  account  as  such 
executor  may  be  judiciallj-^  settled  ;  and  that  the  creditors, 
or  persons  claiming  to  be  creditors,  of  the  said  decedent, 
and  the  husband  \or  wife]  of  said  decedent,  next  of  kin 
[and  legatees]  [or  if  either  of  those  persons  has  died,  pray 
that  his  executor  or  administrator,  if  any,  may  be  cited  to 
attend  such  settlement.' 

Dated ,  18—. 

E.  F. 

[Verification  as  in  form  No.  52.] 


No.  1478. 

Order  that  Citation  Issue  to  Creditors,  etc.,  on  Petition  of 
Executor,  etc.,  for  Final  Accounting. 

(Code  Civ.  Pro.,  g  2728.) 

As  in  form  No.  1476,  to  [*],  and  from  thence  as  fol- 
lows :  Appeared  [by  G.  M.  as  liis  attorney]  and  filed  his 
written  petition,  duly  verified,  praying  that  his  account  as 
such  [executor]  may  be  judicially  settled  and  that  the  credi- 
tors of  said  decedent,  and  other  proper  persons,  may  be 
cited  to  attend  such  settlement : 

It  is  hereby  ordered,  that  a  citation  issue  accordingly, 

returnable  before  me,  at,  etc.,  on  the day  of , 

18 — ,  at o'clock  in  the noon  of  that  day.* 

F.  W.,  Surrogate. 

'See   section   2728,  Code  Civ.  Pro.,  separate  account,  it  inuHt  ]>raythuthia 

and  section '2iJI9,  ill.     The  residences  co-executois  or  co-ailrniniHtralorM  may 

are  not  i-nijuirftd  to  he  Ktuted.  also  l»t^  citfii.     (Cudtf  Civ.  I'l-o.,  }  2728). 

*  If  one  of  two  or  more  co-executora  Section  272.S  at'orc.suid    was   anicinicd 

or  co-administratora  i)r»iHeiit8   a  peti-  by  ch.  42G  of  Jjiiwh  of  IMtf),  no  »w  to 

tion    for   a  judicial   settlement  of  bin  authorize  an  accounting'  alHo  u|)un  the 


1326  Forms  Kelating  to 

No.  1479. 

Petition  of  Executor,  etc.,  after  the  Expiration  of  a  Year 
for  an  Accounting,  he  not  Having  been  Cited. 

(Code  Civ.  Pro.,  g2728.) 

As  in  form  'No.  1477  to  [*J,  and  from  thence  as  follows : 
And  your  petitioner  further  shows,  that  he  is  prepared  to 
render  a  final  account  of  his  proceedings  as  such  [executor]. 

Your  petitioner,  therefore,  prays,  etc.  [conclude  as  in  form 
No.  1477].' 

Dated ,  18—. 

[Signature  as  in  form  No.  1477.] 

[Verification  as  in  form  No.  52.] 


No.  1480. 
Account  of  Administrator,  etc, 

(Code  Civ.  Pro.,  §2729.) 

The  Estate  of  A.  B.,  Deceased,  in  Account  with  C.  D., 
Administrator,  etc. 

18—.  Dr. 

Aug.     14.     To  cash  paid  for  advertising  notice  of  sale  of  stock,  fix- 
tures, etc.,  at  the  factory  in  the  Su/i,  Tribune  and  Times,      $4  25 
To  cash  paid  for  printing  and  circulating  fifty  hand  bills 

of  same  sale 1  50 

16.  To  cash  paid  E.  G. ,  the  owner  of  the  factory  kept  by  the 
intestate,  balance  of  two  quarters'  rent,  due  at  the  time 
administration  was  granted,  with  interest 275  08 


petition  of  the  executor  or  administra-  (2)  upon  a  petition  by  the  accounting' 

tor,  where  notice  requiring  all  persons  party  under  id.,  §  2728.     (Schlegel  v. 

having  claims  against  the  deceased  to  Winckel,  sicpra.)     See,  further,  as  to 

exhibit  the  same,   with  the  vouchers  filing  account,  In  re  Harris  (1  Civ.  Pro. 

thereof,  to  such  executor  or  adminis-  R.,  162). 

trator  has  been   duly   published  ac-  The  citation  need  not  be  directed  to 

cording  to  law.  the  jietitioner  in  the  special  jiroceed- 

'  A  surrogate  may  issue  the  supjile-  ing  pending  against  the  executor  or 

mental  citation  specified  in  Code  Civ.  administrator ;  but  the  hearing  of  that 

Pro.,  §  2727,  only  upon  the  return  of  proceeding  must   be   adjoui-ned  until 

a  citation  issued  as  pi-escribed  in  id.,  the  return  of  the   citation  so  issued  ; 

former   §  2726,    present  §  2727  ;    i.  e.,  when  the   two   ])rocee<Ung3   must   be 

one  calling  for  a  judicial  settlement  of  consolidated.      The  consolidation  does 

the  account.      (Schlegel  v.  Winckel,  2  not   aff"ect   any   jiower  of  the   sutto- 

Dem.,  232.)  gate,    which    might   be   exercised   in 

A  judicial  settlement  of  the  account,  either  proceeding.    (Code   Civ.  Pro., 

of  an   executor,  etc.,    can  Vje  had  in  §  2727.) 

either    of   only  two  ways:    (1)  Upon  .  If  any  infants  are  parties,  the  sur- 

petition  of  a  creditor  or  person  inter-  rogate  has  no  jurisdiction  to  proceed 

ested  under  Code  Civ.  Pro.,  §  2727;  or  beyond  service  of  the  citation,  until 


SUREOGATES'    CoURTS.  1327 

Feb.  15.  To  cash  paid  Evening  Post  and  Times,  newspapers  for  ad- 
vertising notices  to  creditors  to  exhibit  their  claims $11  00 

Sept.      2.     To  cash  paid  surrogate's  fees  for  certiticate 50 

20.     To  cash  paid  S.  H.  on  account  of  his  claim 22  50 

Jan.  10.  To  cash  i3aid  Mrs.  A.  C,  executrix,  etc.,  of  F.  C,  deceased, 
on  account  of  debt  due  by  the  intestate  to  the  estate  of 
the  said  F.  C,  deceased 375  00 

Feo.       3.     To  cash  paid  J.  H.,  attorney,  etc.,  for  services,  advice, 

costs,  etc 95  13 

To  balance  cash  on  hand    448  03 


$1,232  99 

18—.  Cr. 

Oct.        2.     By  cash,  net  proceeds  of  sale  of  fixtures,  stock,  etc.,  at  the 

factory $543  47 

16.     By  cash  received  from  sales  at  factory 31  96 

By  cash  received  from  J.  M.  in  full  of  his  account 7  00 

By  cash  proceeds  on  sale  of  horse 55  00 

Dec.      30.     By  cash  received  from  H.  B.  in  full  of  his  account 18  88 

March  20.     By  cash  received  from  P.  F.  in  full  of  judgment  against 

him,  with  interest,  by  the  hands  of  J.  C 126  40 

Feb.      12.     By  cash  left  on  deposit  by  intestate  in  

savings  bank $428  78 

By  interest  on  ditto  to  January  1,  18 — 6  50 

By  ditto  to  July  1 7  50 

By  ditto  to  January  1 7  50 

450  28 


$1,232  99 


Feb.  15.  By  balance  brought  down,  amount  now  on  hand,  subject 
to  the  payment  of  expenses,  and  administrator's  com- 
missions, and  to  distribution' $448  03 


The  Following  Claims  Exist  Against  tiie  Estate  of 
THE  Said  Intestate. 

(Give  a  list,  with  particulars  of  the  claims.) 
(Annex  affidavit,  next  form,  No.  1481.) 

special  g-uardiana  for  the  infants  have  *  See  notes  to  form   No.  1477  ;  and 

been   appointed.     (In  re  Lf^ickrow,  4  as  to  petition  by  exiM^utoi-,  eti'.,  when 

Abb.  N.  C,  173.)  letters  have  been  revoked,  kuo  Coile 

For  pen('ral    form    of   citation,  see  Civ.  Pro.,  §  27J8. 

form  No.  1345.  '  See  sections  2729-2731,  Code  Civ. 

A  creditor  or  a  pei-son  interested  in  Pro.  ;    al>o,   Savuf^e   v.  Shei-inan    (24 

the  estate,  although  not  cited,  is  en-  Hun,  307;  "S.  C,  87  N.  Y..  277).  Cox 

titled  to  a}())ear  on  the  heaririy,   and  v.  Si;h«'rtnerhorn  (18  Hun,  11)),   ICKtale 

thus  make  hiniHelf  a  jiarty  to  ttie  i)ro-  of  Molljit  ('24   i<l.,  ."{'J.')),    Hftls  v.  HcltH 

cee<ling.       (Code  Civ.    Pro.,    §  2728.)  (4  Abb.  N.  C,   317.   I'-'JiJ),   In  re   Lcjf- 

See,    also.    Matter   of   De   Forest   (86  gutt  (4  Kcdf..  HP).  Whiin.-v  v.  I'lio-nix 

Hun,  300.)  (4i.l.,IS0).  \Vhr..|iiglitv.Wh.-..biglit  (2 

id.,  noi),  Carroll  V.  llughus  (f)  id.,  337), 


1328  Forms  Relating  to 

No.  1481. 
Affidavit  of  Executor,  etc.,  to  Account. 

(Code  Civ.  Pro.,  ^  2733.) 

County,  ss.  : 


J.  H.,  of ,  being  duly  sworn,  sjfj^s,  that  he  is  the 

executor  of  the  will  [or  administrator  of  all  and  singular 
the  goods,  chattels  and  credits],  of  C.  D.,  late  of  the  [city] 
of ,  deceased. 

That  the  foregoing  account  contains,  according  to  the  best 
of  his  knowledge  and  belief,  a  full  and  true  statement  of  all 
his  receipts  and  disbursements  on  account  of  the  estate  of 
the  said  decedent ;  and  of  all  money  and  other  property 
belonging  to  the  said  estate  which  have  come  to  his  liands,^ 
or  which  have  been  received  by  any  other  person  by  his 
order  or  authority,  for  his  use  ;  and  that  he  does  not  know 
of  any  error  or  omission  in  the  said  account  to  the  preju- 
dice of  any  creditor  of,  or  person  interested  in,  the  estate  of 
the  said  decedent. 

This  deponent  further  says,  that  the  sums  under  twenty 
dollars,  charged  in  the  said  account,  for  which  no  vouchers 
or  other  evidences  of  payment  are  hereto  annexed,  or  for 
which  he  may  not  be  able  to  jiroduce  vouchers,  or  other 
evidences  of  payment,  have  actually  been  i)aid  and  dis- 
bursed by  him  as  charged. 

[And  this  deponent  further  says,  that  the  items  of  said 
account  for  which  no  vouchers  are  produced,  exceeding 
twenty  dollars,  were  paid  by  deponent  at  the  times  and  to 
the  persons  as  stated  in  said  account ;  that  deponent  did 
not  take  vouchers  when  he  made  such  payments  {or  that 
the  vouchers  taken  by  him,  when  he  made  such  payments, 

have  been  lost,  or  destroyed).'] 

J.  H. 
[Jurat  as  in  form  No.  46.] 

Estate  of  Slos.son(4  Civ.  Pro.,  R,  280),  Welling  v.  Welling  (3  Dem.,  511),  as 
Meeker  v.  Crawford  (5  Redf.,  450),  to  compensation  of  executors,  etc. ;  as 
Matter  of  Roosevelt  (5  Redf. ,  601),  Slos-  to  claims  against  and  in  favor  of  exec- 
son  V.  Naylor  (2  Dem.,  257),  Waters  v.  utors,  etc.,  see  section  2731,  Code  Civ. 
Faber  (2  Dem.,  290),  Secor  v.  Sentis  (5  Pro.  ;  Matter  of  Cooper  (6  Misc.,  501). 
Redf.,  570),  Arthur  v.  Nelson  (1  Dem.,  ^  See  subd.  2  of  section  2729,  as  to 
337),  Hall  V.  Campbell  (1  Dem.,  415),  these  items,  and  as  to  additional  proof 
Marshall  v.  Wysong  (3  Dem.,   173),  required  in  such  cases.      The   above 


Surrogates'  Courts.  1329 

No.  1482. 

Account  of  Executor  or  Administrator  on  Final  Settle- 
ment. 

(Code  Civ.  Pro.,  §  2730.) 

SURROGATE'S  COURT— County  of  . 


Ik  the  Matter  of  the  Judicial 
Settlement  of  the  Account  of 
E.  F.  AS  the  [Executor  of  the 
Will]  of  C.  D.,  Deceased. 

To  the  Surrogate  of  the  County  of  — 


I,  E.  F.,  of  the  [city]  of ,  do  hereby  render  the 

following  account  of  my  proceedings  as  executor  of  the  will 
of  C.  D.,  deceased,  for  judicial  settlement: 

On  the day  of ,  18 — ,  letters  testamentary 

of  the  will  of  C.  D.,  late  of  the  [city]  of ,  deceased, 

were  issued  to  me. 

On  the day  of ,  18 — ,  I  caused  an  inven- 
tory of  the  personal  estate  of  the  deceased  to  be  filed  in  this 
office,  which  personal  estate  therein  set  forth  amounts,  by 

appraisement,  by  the  appraisers,  duly  appointed,  to 

dollars. 

Schedule  A,  hereto  annexed,  contains  a  statement  of  all 
the  property  contained  in  said  inventory,  sold  by  me  at 
jjrivate  sale,  with  the  prices  and  manner  of  sale  ;  which  sales 
were  fairly  made  by  me,  at  the  best  prices  that  could  then 
be  had",  with  due  diligence,  as  I  then  believed.  It  also  con- 
tains a  statement  of  all  the  debts  due  the  said  estate  and 
mentioned  in  said  inventory  which  have  been  collected,  and 
also  of  all  interest  for  moneys  received  hy  me  for  which  I 
am  legally  accountable, 

Scliedule  B,  hereto  annexed,  contains  a  statement  of  all 
debts  in  said  inventory  mentioned,  not  collected  or  collecta- 
ble by  me,  together  with  the  reasons  why  the  same  have  not 
been  collected  and  are  not  collectable  ;  and  also  a  statement 
of  the  articles  of  X)ersonal  property  mentioned  in  said  iriven- 

ciause  must  be  varied  to  meet  the  par-    tralor  upon  fiuiil  settlement,  see  next 
ticular  case.  form,   No.    1482;   and,    further,   a.s  to 

For  account  of  executor  or  adminis-    vouchers,  see  note  2  to  that  form. 

167 


1330  FoKMs  Relating  to 

tory  unsold,  and  tlie  reasons  of  tlie  same  being  unsold,  and 
their  appraised  value  ;  and  also  a  statement  of  all  property 
mentioned  in  said  inventory  lost  by  accident,  without  any 
willful  default  or  negligence,  the  cause  of  its  loss  and  ap- 
X^raised  value.  No  other  assets  than  those  in  said  inven- 
tory, or  herein  set  forth,  have  come  to  my  possession  or 
knowledge,  and  all  the  increase  or  decrease  in  the  value 
of  any  assets  of  said  deceased  is  allowed  or  charged  in  said 
schedules  A  and  B. 

Schedule  C,  hereto  annexed,  contains  a  statement  of  all 
moneys  x^^^i^^  ^y  ^^^^  ^*^^'  funeral  and  other  necessary  ex- 
penses for  said  estate,  together  wdth  the  reason  and  objects 
of  such  expenditure. 

On  or  about  the day  of ,  18 — ,  I  caused 

a  notice  for  claimants  to  present  their  claims  against  the 
estate  to  me,  wathin  the  x^eriod  fixed  by  law,  and  at  a  certain 
X)lace  therein  specified,  to  be  x^ublished  in  two  newspax^ers, 
according  to  law,  for  six  months,  x^ursuant  to  an  order  of 

the  surrogate  of  the  county  of ,  to  which  order, 

notice  and  due  x^roof  of  x^ublication,  herewith  filed,  I  refer 
as  part  of  this  account. 

Schedule  D,  hereto  annexed,  contains  a  statement  of  all 
the  claims  of  creditors  x^resented  to  and  allowed  by  me,  or 
disx:»uted  by  me,  and  for  which  a  judgment  or  decree  has 
been  rendered  against  me,  together  with  the  names  of  the 
claimants,  the  general  nature  of  the  claim,  its  amount  and 
the  time  of  the  rendition  of  the  judgment ;  it  also  contains 
a  statement  of  all  moneys  x^aid  by  me  to  the  creditors  of  the 
deceased,  and  their  names  and  the  time  of  such  payment. 

Schedule  E,  hereto  annexed,  contains  a  statement  of  all 
moneys  paid  to  the  legatees,  widow  or  next  of  kin  of  the 
deceased. 

Schedule  F,  hereto  annexed,  contains  the  names  of  all 
persons  entitled,  as  widow,  legatee  or  next  of  kin  of  the 
deceased,  to  a  share  of  his  estate,  with  their  x^laces  of  resi- 
dence, degree  of  relationship,  and  a  statement  of  which  of 
them  are  minors,  and  whether  they  have  any  general  guard- 
ian, and,  if  so,  their  names  and  places  of  residence,  to  the 
best  of  my  knowledge,  information  nnd  belief. 

Schedule  G,  hereto  annexed,  contains  a  statement  of  all 


SUEROGATES'    CoURTS.  1331 

other  facts  affecting  my  administration  of  said  estate,  my 
rights  and  those  of  others  interested  therein. 

I  Chakge  Myself. 

Amount  of  inventOFy |    

Amount  of  increase,  as  per  exhibit  A 


I  Ckedit  Myself. 

Amount  of  loss  on  sales,  as  per  schedule  B 

Amount  of  debts  not  collected,  as  per  schedule  B 

Amount  of  schedule  C . . . .    

Amount  of  schedule  D 

Amount  of  schedule  E 

Leavinfi:  a  balance  of 


To  be  distributed  to  those  entitled  thereto,  subject  to  the 
deduction  of  the  amount  of  my  commissions,'  and  the  ex- 
penses of  this  accounting.     The  said  schedules,  which  are 
severally  signed  by  me,  are  part  of  this  account.' 
[Annex  affidavit  as  in  form  No.  1481.] 


No.  1483. 
Decree  for  Payment  and  Distribution. 

(Code  Civ.  Pro.,  §2743.) 

[At,  etc.,  as  in  form  No.  1394.] 
Present,  F.  W.,  Surrogate. 

In  the  Matter  of  the  Final  Ac- 
counting OF  A.  B.,  AS  [Executor 
OF  the  Will]  of  C.  D.,  Deceased. 

A.  B.,  sole  executor  of  the  will  of  C.  D.,  late  of  the  [city] 

of ,  deceased,  having  heretofore,  and  on  the 

day  of ,  18 — ,  duly  presented  his  petition,  in  writing, 

praying  for  a  final  judicial  settlement  of  his  accounts  as  such 


1  See  note  2  to  form  No.  1480,  as  to  N.  Y.,  476;  rev'g  S.  C,  13  Ilun.  206), 
commissions  of  executor,  etc.  Tickel  v.  Quinn  (1  Dem.,  42.')). 

'See  as  to  vouchers,  section  2729,  For  order  of  reference.of  account  to 
Code  Civ.  Pro.;  Boughton  v.  Flint  (74    a  referee,  see  form  No.  13(55;  for  form 

of  referee's  report,  see  form  No.  1366. 


1332  Forms  Relating  to 

executor,  and  a  citation  having  been  thereupon  duly  issued 
to  all  persons  interested  in  the  estate  of  said  deceased,  re- 
quiring them  to  appear  in  this  court  on  the day  of 

,  18 — ,  and  attend  the  linal  judicial  settlement  of  the 

accounts  of  said ;  and  said  citation  having  been 

returned  with  proof  of  the  due  service  thereof  according 
to  law,  and  said  executor  having  appeared  and  filed  his  ac- 
counts, and  [state  appearances,  etc.,  as  in  form  No.  1425], 
and  the  said  account,  and  the  vouchers  therewith  filed, 
having  been  duly  examined  and  found  correct : 

It  is  ordered,  adjudged  and  decreed,  and  the  surrogate, 
by  virtue  of  the  power  and  authority  in  him  vested,  doth 
order,  adjudge  and  decree,  that  the  said  accounts  of  said 
A.  B.,  as  such  executor,  as  rendered  and  filed,  be  and  the 
same  are  hereby  finally  settled  and  allowed. 

The  following  is  a  summar}^  statement  of  the  said  ac- 
counts settled  and  allowed,  made  and  recorded,  pursuant 
to  the  statute  in  such  case  made  and  provided  ;  that  is 
to  say  : 

The  said  executor  is  charged  with  the  amount  of  the  inventory $    

Increase 

[Etc.  (as  may  be  necessary).] 


The  said  executor  is  credited  by  amount  of  funeral  expenses,  and  ex- 
penses of  administration    $ 

Debts  of  the  said  deceased 

[Etc.  (as  may  be  necessary).] 


Leaving  a  balance  in  the  hands  of  said  executor  belong- 
ing to  the  estate  of  the  said  C.  D.,  deceased,  of 

dollars. 

And  it  is  further  ordered  and  decreed,  that  said  executor 
divide,  pay  and  distribute  the  said  amount  of  cash  in  his 
hands,  after  deducting  therefrom  the  amount  of  his  legal 
commissions  for  his  services  [which  are  hereby  allowed  at 

the  sum  of dollars],  and  the  amounts  hereinafter 

sr>ecified  allowed  to  him  for  costs  Ccounsel  fees]  and  ex- 


Surrogates'  Courts.  1833 

penses  of  this  accounting,  as  follows,  to  wit :  that  he  pay 
and  distribute,  etc.  [state  distribution  to  be  made]. 

And  it  is  herebj^  further  ordered  and  decreed,  that  the 
said  executor  be  and  he  is  hereby  allowed  his  costs  and  dis- 
bursements in  this  jDroceeding,  to  wit :  the  sum  of 

dollars,  and,  in  addition  thereto,  the  sum  of dol- 
lars for  a  counsel  fee  upon  this  accounting,  to  be  deducted 
from  and  paid  out  of  the  said  moneys  in  his  hands  before 
distribution.' 

And  it  is  further  ordered,  that  upon  the  payments  and 
distribution  being  made  by  said  executor  as  aforesaid,  and 
upon  filing  the  receipts  of  the  above  named  legatees,  and  dis- 
tributees for  the  amounts  respectively  paid  them,  that  said 
executor  be  and  he  is  hereby  discharged  from  all  liability 
as  such  executor. 

And  it  is  further  ordered,  that  these  proceedings,  be  and 

the   same   are  hereby   adjourned   to   the day  of 

,  18 — ,  at o'  clock  in  the noon. 

F.  W.,  Surrogate. 

TITLE  V. 

FORMS  RELATING  TO  THE  DISPOSITION  OF  THE  DECEDENT'S 
REAL  PROPERTY,  FOR  THE  PAYMENT  OF  DEBTS  AND 
FUNERAL  EXPENSES. 

(Code  Civ.  Pro.,  Ch.  18,  Tit.  5.) 

No.  1484.     Petition  for  disposition  of  real  property  of  a  decedent,  for  the  pay- 
ment of  his  dehts  and  funeral  expenses. 

1485.  Decree  directing  mortgage  or  lease  of  real  property  of  decedent,  for 

payment  of  debts,  etc. 

1486.  Decree  for  sale  of  real  property,  for  payment  of  debts,  etc.,  of 

decedent. 

1487.  Order  directing  execution  of  decree  on  filing  of  bond  by  executor, 

etc. 

1488.  Bond  to  be  given  by  executor  or  administrator  before  executing 

decree  for  disposition  of  real  property. 


>  As  to  allowance  and   amount   of  Estate  of  Withers (2  Civ.  Pro.  R.,  162), 

costs,  see  Code  Civ.  Pro.,  g§  25r)6-2.'56:},  Harward  v.    Hewlett  (5  Redf..  330) 

Hannahs  v.  Hannahs  (08  N.  Y.,  610),  Walton  v,  Howard  (1  Dem.,  103),  Hall 

Seaman  v.  Whitehead  (78  N.  Y.,  306;  v.  Campl)ell  (1  Dem.,  415),  Forster  v. 

Marsh  V.  Avery  (81  N.  Y.,29),  Oilman  v.  Kane  (1  Dem.,  07),  Dii  Bois  v.  Brown 

Gilman(63id.,41),Fowlerv.  Lockwood  (id.,  317),  Ri^'ga  v.  Cragg  (S9  N.  Y., 

(3  Redf.,  465),  Estate  of  Valentine  (9  479,  rev'gS.  C,  2GlIuii,8'J),  Osborne  v. 

Abb.  X.  C.  313).  In  re  Miles  (5  Redf.,  McAlpine  (1  Redf.,]),  Mattt-r  of  Bender 

110).  Carroll  v   Hughes  (5  Redf.,  337),  (86  Hun,  G70),  In  le  Laramie  (13  N.  Y. 


Surrogates'  Courts. 


1333 


a 


Supp.,  175),  Stokes  v.  Dale  (1  Dem., 
260),  Matter  of  Fernbacher  (17  Abb.N. 
C,  339),Du  Bois  v.Brown  (1  Dem.,317), 
Matter  of  Clark  (36  Hun,  301),  Matter 
of  Gray  (91  N.  Y.,  502),  Matter  of  Kee- 
ler  (23  Abb.  N.  C,  276),  la  re  Lamb's 
Will  (5  N.  Y.  Supp.,  565),  Matter  of 
Johnson  (6  Dem.,  55),  Freeman  v.  Coit 
(27  Hun,  447;  96  N.  Y.,  63),  Chalker 
V.  Chalker  (5  Redf.,  4S0),  Bunnell  v. 


Ranney  (2  Dem.,  327),  Matter  of  Sex- 
ton (1  id.,  3),  Estate  of  Stokes  (3  Civ. 
Pro.  R.,  384),  Scofield  v.  Adriance 
(2  Dem.,  486),  Estate  of  Willelt  (15  Civ. 
Pro.  R.,  284),  In  re  Tacke's  Will  (17 
State  Rep.,  805,  among  other  cases. 

See  as  to  allowance  for  expenses  of 
executor,  etc.,  incurred  on  application 
to  revoke  letters.  (Matter  of  O'Brien, 
145  N.  Y.,  379). 


1334  Forms  Relating  to 

No.  1489.  Report  of  sale  by  executor,  etc. 

1490.  Order  confirming  sale. 

1491.  Deed  of  executor  or  administrator. 

1492.  Order  for  implication  of  notice  of  distribution. 

1493.  Notice  of  distribution  of  i)roceeds,  of  disposition  of  real  property^ 

1494.  Supplementary  decree  for  distribution  of  i)roceeds  of  sale. 

1495.  Notice  to  widow  of  satisfaction  of  her  dower. 

1496.  Widow's  release  of  dower  and  consent  to  accept  a  gross  sum. 


No.  1484. 

Petition  for  Disposition  of  Real  Property  of  a  Decedent, 
for  the  Payment  of  His  Debts  and  Funeral  Expenses. 

(Code  Civ.  Pro.,  g§  2750,  2751,  2752.) 

To  the  Surrogate^  s  Court  of  the  County  of ; 

The  petition  of  A.  B.,  of ,  respectfully  shows, 

that  your  petitioner  is  [stating  character  in  which  he 
applies].' 

That  letters  of  administration  of,  etc.  \or  letters  testa- 
mentary upon  the  will],  of  C.  D.,  late  of deceased, 

were  first  duly  granted  and  issued  to  your  petitioner  [and 

G.  H.,  of ]  [or  to  E.  F.,  of ,  and  I.  J.,  of 

],  by  the  surrogate  of county,  within  three 

years,  and  on  the day  of ,  18—. 

And  your  petitioner  further  shows,  that  the  following  are 
the  unpaid  debts  of  and  claims  made  against  said  decedent, 
and  the  names  of  the  persons  to  whom  the  said  debts  are 
owing  and  by  whom  said  claims  are  made,  as  nearly  as  your 
petitioner  can,  upon  diligent  inquiry,  ascertain  the  same 
[state  the  debts  and  claims].* 

That  so  far  as  your  petitioner  can,  upon  diligent  inquiry, 
ascertain  the  same,  the  amount  of  the  unpaid  funeral  ex- 
penses of  said  decedent  is dollars,  and  that  the 

same  are  owing  to  F.  P.  [and  J.  R.,  and  that  the  sum  of 
■ dollars  thereof  is  owing  to  said  F.  P.,  and  the  bal- 
ance thereof  to  said  J.  R.].' 

That  the  following  is  a  general  description  of  all  the  de- 

'  See  section  2750,  Code  Civ.  Pro.,  as  As  to  action  by  executor,  etc.,  to  set 

to   who   may  make   the    application,  aside  fraudulent  conveyance  or  incum- 

That  ancillary  administrator   cannot,  brance  upon  real  estate  of  deceased 

see  In  re  Ladd  (5  Civ.  Pro.  R.,  50).  person,  and  action  or  proceeding  for 


SUKBOGATES'    CoURTS.  1335 

cedent's  real  property,  and  interest  in  real  property,  within 
tlie  State,  which  may  be  disposed  of  as  prescribed  by  title 
fifth  of  chapter  eighteenth  of  the  Code  of  Civil  Procedure, 
so  far  as  your  petitioner  can,  upon  diligent  inquir}-,  ascer- 
tain the  same,  to  wit  [describe  same,  stating  the  value  of 
each  distinct  parcel,  and  whether  it  is  improved  or  not ; 
whether  it  is  occupied  or  not,  and,  if  occupied,  the  name  of 
each  occupant]/ 

That  the  name  of  the  husband  [or  wife]  of  said  decedent 
is  M.  D. 

That  the  names  of  the  heirs  and  devisees  of  the  said  de- 
cedent are  as  follows,  so  far  as  your  i)etitioner  can,  upon 
diligent  inquiry,  ascertain  the  same  [state  them]. 

That  said  C.  B.  and  J.  H.  [naming  infants  and  stating 
ages]  are  infants,"  and  [state  the  names  of  their  general 
guardians,  if  any,  or  the  fact  that  they  have  no  general 
guardians]. 

[And  your  petitioner  further  shows,  that  the  amount  of 
the  personal  property  which  has  come  to  the  liands  of  your 
petitioner  as  such  (executor)  (and  into  the  hands  of  his  said 
co-executor),  is  (state  same) ;  that  your  said  jDetitioner  (and 
his  said  co-executor,  or  co  administrator)  have  (state  the 
application  of  the  j^ersonal  property,  and  the  amount  which 
may  yet  be  realized  therefrom).  'J 

That  your  petitioner  \or  that  said  executor,  etc.],  has 
caused  to  be  published,  as  prescribed  by  law,  a  notice,  re- 
quiring creditors  to  present  their  claims,  and  the  time  for  the 
IDresentation  thereof,  pursuant  to  said  notice,  has  elapsed  * 
\or  state  that  such  a  notice  has  not  been  published]. 

And  your  petitioner  prays  for  a  decree,  directing  the  dis- 
position of  the  decedent's  said  real  property,  or  interest  in 
real  property,  or  so  much  thereof  as  may  be  necessary,  for 
the  payment  of  his  debts  or  funeral  expenses,  or,  etc.,^  by 

29(5).,  Matter  of  Corwin  (10  Misc.,  197).  (Code  Civ.  Pre,  §  2752,  subd.  4.) 

And  see  amendment  to  subd.  2  id.  by  *  See   last  sentence  of  section  2754, 

eh.  735  of  Laws  of  1894,  as  to  state-  Code  Civ.  Pro. 

ments    in    case    of   incumbraiice    by  *  By  chapter  785  of  Laws  of  1894, 

mortgage  liens.  the  words  "  or  if  so  decreed,  as  here- 

*8ee  subd.  2  of  section  2752,  Code  inafter  i)rovi<l>Ml.  for  the  payment  of 

Civ.  Pro.,  and  section  2749  (id.)-  any  judgmcMit  liens  exiHling  upon  such 

''See  subd.  3  of  Bection  2752,  Code  land,  or  some  portion  thereof,  at  de- 
Civ.  Pro.,  amended  by  chapter  735  of  cedent's  death,"  were  iiipcrted  in  sec- 
Lawfl  of  1894.  tion    2750,    Code   Civ.  Pro.,  after  the 

'These  statements  are  required  to  words  •*  funeral  expenses."  Bee  also, 
be  made,  if  the  j)etition  is  prneented  amendment  by  same  chapter  to  see- 
by    an     executor    or    admiuistrator.  tiou  2749,  id. 


1336  Forms  Uelating  to 

the  mortgage,  lease  or  sale  at  public  or  private  sale  there- 
of; and  that  the  parties  named  in  this  petition,  and  all 
other  necessary  parties,  as  prescribed  in  title  ninth  of 
chapter  eighteent.i  of  the  Code  of  Civil  Procedure  may  be 
cited  to  show  cause  why  such  a  decree  should  not  be  made.^ 

Dated ,  18 — . 

A.  B. 

[Verification  as  in  form  No.  52.] 


No.  1485. 

Decree  Birecting  Mortgage  or  Lease  of  Real  Property  of 
Decedent  for  Payment  of  Debts,  etc. 

(Code  Civ.  Pro.,  g  2760.) 

[At,  etc.,  as  in  form  No.  1394.] 


In  the  Matter  of  the  Applica- 
tion TO  Mortgage,  Lease  or 
Sell  the  Real  Estate  of  C.  D., 
Deceased. 

A.  B.,  the  [executor  of  the  will]  of  C.  D.,  deceased,  having 
heretofore  presented  to  the  surrogate's  court  of  the  county 

of his  petition,  duly  verified,  dated ,  18 — , 

praying  for  a  decree  directing  a  disposition  of  the  said  de 
cedent's  real  property  or  interest  in  real  property  specified 
in  section  2749  of  the  Code  of  Civil  Procedure,  or  so  much 
thereof  as  is  necessary  for  the  payment  of  his  debts  [and 
funeral  expenses]  [or  funeral  expenses]  by  the  mortgage 
lease  or  sale  at  public  or  private  sale  thereof ;  and  for  the 
necessary  citation  to  issue  to  the  proper  parties,  and  the 

*See   section  2753,  Code  Civ.  Pro.,  In  re  Sling-erland  (id.,  413),  Estate  of 

amended  by  ch.  735  of  Laws  of  1894,  Le  Baron  (6  Civ.  Pro.  R.,  62  ;  S.  C,  3 

as  to  statements  of  petition  when  some  Dem.,  37),  Raynor  v.  Gordon  (23  Hun, 

of  the  facts  re(iuired  to  be  stated  by  264),    Dennis   v.  Jones  (1   Dem.,  80), 

section   2752   (id.),   cannot   be  ascer-  Stilwell  v.  Swarthout   (81  N.  Y..  109), 

tained  by  the  petitioner  upon  diligent  Matter  of  Fuller  (86  Hun,  47),   Raven 

inquiry  and   proceedings   thereupon,  v.  Norton   (2   Dem.,    110),   as  to  this 

See  also  Dennis  v.  Jones  (1  Dem.,  80).  proceeding. 

See   also,   In  re  Estate  of  Akin  (20         See,  as  to  extension  of  time  for  ap- 

Week.  Dig.,  24),  Mead  v.  Jenkins  (27  plication,  by  pendency  of  suit  in  court 

Hun,  570;  S.  C,  4  Redf.,  369),   U.S.  of    record    between    a    creditor    and 

Life   Ins.    Co.  v.  Jordan  (5  i<l.,  207),  administrator,    etc.,    Code   Civ.   Pro., 

Jenkins  v.  Young  (21  Week.  Dig.,  307),  §  2751. 


Surrogates'  Courts.  1387 

surrogate  being  satisfied  that  all  tlie  facts  specified  in  sec- 
tion 2752  of  the  Code  of  Civil  Procedure,  have  been  ascer- 
tained, as  far  as  they  can  be  upon  diligent  inquiry,  and  it 
appearing  to  him  that  the  debts  [or  funeral  exj^enses]  of 
said  estate  cannot  be  paid  without  resorting  to  the  real 
property,  or  interest  in  the  real  property  described  in  said 
petition,  having  issued  a  citation  j^ursuant  to  the  i)rayer  of 
said  petition,  requiring  the  parties  named  in  the  said  peti- 
tion and  all  other  necessary  parties  as  prescribed  in  title 
fifth  of  chapter  eighteenth  of  the  Code  of  Civil  Procedure 
to  appear  before  him  at,  etc.,  on,  etc.,  to  show  cause  why 
such  a  decree  should  not  be  made  ;  and  said  citation  having 
been  returned  with  due  2^roof  of  service  thereof  upon  the 
parties  to  whom  it  was  directed,  and  [state  appearances], 
and  the  said  surrogate  having  heard  the  proofs  and  allega- 
tions of  the  parties,  and  the  facts  required  by  section  2759 
of  the  Code  of  Civil  Procedure  having  been  established  to 
the  satisfaction  of  the  surrogate,  and  the  surrogate  having 
inquired  whether  sufficient  money  can  be  raised  advanta- 
geously to  the  persons  interested  in  the  real  property,  by  a 
mortgage  or  lease  of  the  real  property  of  which  the  decedent 
died  seized,  or  of  a  part  thereof,  and  to  that  end  having  ap- 
pointed three  competent  and  disinterested  persons  to  ex- 
amine and  appraise  each  parcel  of  such  real  property,  and 
its  rental  value,  at  its  just  and  fair  market  value  ;  and  the 
said  persons  having  so  appraised  the  same  and  made  a 
report  signed  by  [two  of]  them,  describing  each  parcel,  and 
stating  its  value  and  rental  value  and  having  filed  the  same 
in  said  surrogate's  office,  and  the  surrogate  having  ascer- 
tained [*]  that  the  money  can  be  raised,  by  the  execution  of 
a  mortgage  upon  [or  lease  of  J  the  [portion  of  the]  said  real 
property  described  in  said  petition  and  hereinafter  described 
for  [state  particulars  as  to  lease  or  mortgage] : 

It  is  here1)y  ordered,  directed  and  decreed,  and  the  said 
surrogate  doth  order,  direct  and  decree,  that  the  said  mort- 
gage or  lease  be  made  and  executed  accordingly  of  the  real 
property  [or  of  the  interest  in  real  pr()i)erty]  described  as 
follows,  to  wit  [describe  same],  for  tlie  ])ur))ose  of  paying 
the  debts  [and  funeral  expenses]  [or  funeral  expenses]  estab- 
lished by  this  decree,  by  the  said  executor  [or  administra- 
16b 


1338  Forms  Relating  to 

torj  upon  his  givin^^  the  bond  prescribed  by  law,  in  the 

penalty  of dollars,  or,  in  case  of  his  failure  so  to  do 

Avithin from  the  date  of  this  decree,  by  a  freeholder, 

to  be  appointed  by  the  surrogate  of county,  as  pre- 
scribed by  law.  [f] 

And  the  said  surrogate  doth  hereby  determine  and  specify 
the  amount  of  each  debt  established  before  him,  as  a  valid 
and  subsisting  debt  [or  as  a  just  and  reasonable  charge  for 
funeral  expenses]  against  the  estate  of  the  said  decedent, 
to  wit  [state  same]. 

And  the  said  surrogate  doth  hereby  further  determine 
and  specify,  that  the  following  demands  presented  as  being 
against  said  estate  have  been  rejected,  to  w^it  [state  rejected 
demands].' 

No.  1486. 

Decree  for  Sale  of  Real  Property  for  Payment  of  Debts, 
etc.,  of  Decedent. 

(Code  Civ.  Pro.,  §§  2761,  2665.) 

As  in  last  form  No.  1485  to  [*],  and  from  thence  as  fol- 
lows :  That  sufl5.cient  money  cannot  be  raised  advantage 
ously  to  the  persons  interested  in  the  said  real  property  [or 
interest  in  real  property],  described  in  the  said  petition,  and 
hereinafter  described,  by  mortgage  or  lease  thereof : 

It  is  hereby  ordered,  directed  and  decreed,  and  the  said 
surrogate  doth  order,  direct  and  decree,  that  a  sale  of  the 
real  property  [or  interest  in  real  i:)roperty]  hereinafter  de- 
scribed, for  the  purpose  of  paying  the  debts  [and  funeral 
expenses]  [or  funeral  expenses]  established  by  this  decree, 
or  of  so  much  thereof  as  is  necessary  in  order  to  pay  the 
said  debts  [and  funeral  expenses]  [or  funeral  expenses],  at 
public  sale '  [or  at  a  private  sale,  at  a  price  not  less  than 


*  See,  generally,  as  to  decree  for  2756.  2757,  Code  Civ.  Pro.;  Matter  of 
mortgage  or  lease,  sections  2760,  2765,  Estate  of  Fox  (92  N.  Y.,  93),  Estate  of 
2767,  Code  Civ.  Pro.  Moakim  (5  Civ.  Pro.  R.,  421),  Burn- 
As  to  recital  of  debts  and  judgment  ham  v.  Harrison  (3  Redf.,  345),  East 
liens,  see  section  2758,  Code  Civ.  Pro.;  River  Nat.  Bank  v.  McCaflfrey  (3  id.. 
People  v.  Westbrook  (61  How.  Pr.,  97),  In  re  Fox  (14  Voek.  Dig.,  339), 
138),  In  re  Estate  of  Akin  (20  Week.  Matter  of  Stowell  (15  Misc.,  533). 
Dig.,  24).  '  See  Code  Civ.  Pro.,  ^  2761,  2765, 
As  to  proof  of  debt  upon  which  j  udg-  as  amended  by  ch.  735  of  Laws  of  1894. 
ment  has  been  rendered,  see  sections 


Surrogates'  Courts.  1383 

the  value  thereof  as  appraised,  pursuant  to  the  provisions 
of  section  2,760  of  the  Code  of  Civil  Procedure^,  be  made 
by  the  said  executor  [or  administrator],  upon  his  giving  tlie 

bond  prescribed  by  law,  in  the  jDenalty  of dollars,' 

or,  in  case  of  his  failure  so  to  do  v^^ithin days  from 

the  date  of  this  decree,  by  a  freeholder,  to  be  appointed  by 

the  surrogate  of county,  as  prescribed  by  law  [in  the 

following  order  (state  order  in  which  the  parcels  are  to  be 
sold,  if  the  decree  directs  the  sale  of  two  or  more  distinct 
parcels).'] 

[Conclude  as  in  last  form  No.  1485  from  (f).] 


No.  1487. 

Order  Directing  Execution  of  Decree  upon  Filing  of  Bond 
by  Executor,  etc. 

(Code  Civ.  Pro.,  §  2768.) 

[At,  etc.,  as  in  form  No.  1394.] 
[Title  of  proceeding.] 

A.  B.,  the  executor  of  C.  D.,  late  of ,  deceased, 

having  given  and  filed  the  bond  required  by  the  decree  en- 
tered herein  on  the day  of ,  18 — ,  the  said 

[executor]  is  hereby  directed  to  X)roceed  to  execute  the  said 
decree  [with  respect  to  (stating  the  property,  if  the  executor 
is  limited  to  a  sale  of  part  of  the  projDerty)].' 

And  it  is  further  ordered  and  directed,  that  the  said  [ex- 
ecutor] may  give  the  purchaser  at  such  sale  of  any  of  the 
said  real  property  a  credit  not  exceeding  three  years,  for 
not  more  than  three-fourths  of  the  i)urchase  money  of  such 
real  property  purchased  by  him,  to  be  secured  by  the  bond 
of  the  said  purchaser  and  his  mortgage  on  the  property,  to 
him  sold  at  such  sale.* 


'  Not  less  than  twice  the  value  of  the  the  purchase  of  real  property,  see  Code 
real  property,  or  interest  in  real  prpp-  Civ.  Pro.,-  g  2779;  and  as  to  provisions 
erty,  directed  to  be  sold.  (Code  Civ.  in  case  the  title  to  any  of  the  real  prop- 
Pro.,  §  276G.)  erty  is  in  controversy,  see  id.,  g  2762. 

»  See  section  2763,  2764,  2769,  Code  See,  also,    notes   to   hist   form   No. 

Civ  Pro.,    aH  to  order  of  eale.     Said  1485. 

flection  2769  was  amended  by  ch.  735  '  See  se.niou  2768,  Code  Civ.  Pro. 

of  Laws  of  1891.  «  See  as  to  credit,  section  2771,  Code 

A.s  to  provisions  of  <lecree  in  case  of 
Bale  of  an  inlei-est  undHr  a  contract  for 


1340  Forms  Relating  to 

And  it  is  further  ordered,  that  the  said  executor  do  make 
a  report,  according  to  law,  of  all  sales  made  by  virtue  of 
this  order. 

iS'o.  1488. 

Bond  to  be  Given  by  Executor  or  Administrator  before 
Executing  Decree  for  Disposition  of  Keal  Peoperty. 

(Code  Civ.  Pro.,  §  276G.) 

As  in  form  No.  340  to  [*],  and  from  thence  as  follows : 
That,  whereas,  tlie  above  bounden,  A.  B.  [executor  of  the 
will]  of  C.  D.,  deceased,  has  lately  made  application  to  the 

surrogate's  court  of  the  county  of for  a  decree 

directing  the  disposition  of  the  said  decedent's  real  jjrop- 
erty  [or  interest  in  real  property] ;  and, 

Whereas,  such  proceedings,  in  due  form  of  law,  have  been 

thereupon  had  tliat  the  surrogate  of  said  county  on  the 

day  of ,  18 — ,  made  and  entered  a  decree  [*]  directing 

the  said  [executor]  to  sell  [w  execute  a  mortgage  {o7'  lease)] 
of  the  real  property  described  in  said  decree  upon  the  terms 
thereby  prescribed  for  the  purpose  of  paying  the  debts  [and 
funeral  expenses]  [or  the  funeral  expenses]  established  by 
the  said  decree  upon  his  filing  his  bond  as  prescribed  by 
law  in  the  penalty '  above  mentioned  : 

Now,  if  the  said  A.  B.  shall  faithfully  perform  the  duties 
imposed  upon  him  by  the  said  decree  and  paj^  into  the  said 
surrogates'  court  within  twenty  days  after  the  receipt  thereof 
by  him  all  money  arising  from  the  said  mortgage  [or  lease, 

or  sale],  shall  deliver  to  the  surrogate  of county, 

within  the  same  time,  all  the  securities  taken  thereupon ; 
and  shall  account  for  all  money  received  by  him,  whenever 
he  is  requiied  to  do  so  by  a  court  of  competent  jurisdiction, 
then  this  obligation  to  be  void,  otherwise  to  remain  in  full 
force  and  virtue. 

[Signature  and  seals  as  in  form  No.  340.] 

Sealed  and  delivered  in  presence  of . 

[Acknowledgment  as  in  form  No.  340,  or  jiroof  as  in  form 

Civ.  Pro.,  where  the  sale  is  that  of  an  This  provision  as  to  credit  may  also 

interest   under  a  contract,   the  order  be  made  by  a  separate  order.     (Id.) 

may  prescribe  the  security  to  be  given.  '  See  section  2766,  Code  Civ.  Pro., 

(Id.)  as  to  penalty. 


Surrogates'  Courts.  1341 

No.  538,  affidavits  and  approval  by  surrogate  as  in  form  No. 
340.]  

No.  1489. 
Report  of  Sale  by  Executor,  etc. 

(Code  Civ.  Pro.,  §  2775.) 

[Title  of  proceeding.  ] 
To  the  Surrogate  of  the  County  of ; 

The  report  of  A.  B.  [executor  of  tlie  will]  of  C.  D.,  de- 
ceased, of  his  proceedings  under  the  decree,  and  for  the 
sale  of  the  real  estate  of  said  deceased,  and  order  for  the 
execution  thereof,  made  respectively  by  said  surrogate  on 

the day  of ,  18 — ,  and  on  the day 

of ,  18 — ,  shows  : 

That  he  caused  a  notice  that  the  said  real  estate  would 

be  sold  at  public  auction,  at in  the  [city]  of , 

on  the day  of  ,  18 — ,  at o'clock  in 

the noon  of  that  day,  to  be  posted  for  six  weeks 

previous  to  the  day  appointed  for  the  said  sale,  at 

and  at and  at ,  three  of  the  most  public 

l^laces  in  the  [ ward]  of  the  [city]  of ,  in 

which  said  [ward]  the  said  place  of  sale  is  located,  and  the 
same  notice  to  be  published  for  six  weeks  successively  pre- 
vious to  the  day  api^ointed  for  the  said  sale,  in  the , 

a  newspaper  printed  in  the  county  of  ,  a  copy  of 

which  notice,  with  the  i:»roof  of  such  printing  and  publica- 
tion thereof,  is  hereunto  annexed. 

And  the  said  [executor]  further  reports,  that  on  the  said 

day  of ,  18 — ,  between  the  hours  of  nine 

o'clock  in  the  morning  and  the  setting  of  the  sun  of  the 

same  day,  at  the ,  in  the  [city]  of ,  and 

within  the  county  of ,  wherein  the  premises  ordered 

to  be  sold  are  situated,  he  sold  at  public  auction  tlie  whole 
of  the  real  estate  mentioned  and  described  in  the  said  de- 
cree, and  that  he  did,  on  the  said  sale,  sell  tlie  piemises 
described  in  the  said  decree,  as  follows  : 

All  that  certain  house  and  lot  of  land  situate,  lying  and 

being,  etc.,  to  H.  F.,  for  the  sum  of dollars,  that 

being  the  highest  sum  bidden  for  the  same. 


1342  Forms  Relating  to 

And  that  on  the  said  sale  he  did  further  sell  the  premises 
described  in  the  said  order,  as  follows  [describe  same],  to 
J.  A.,  for dollars,  that  being  the  highest  sum  bid- 
den for  the  same. 

And  that  on  the  said  sale  he  did  further  sell,  etc. 

And  the  said  [executor]  doth  further  report,  that  the  said 
sale  was  in  all  respects  legally  made  and  fairly  conducted. 

All  of  which  is  respectfully  submitted.' 

Dated ,  18—. 

A,  B.,  Executor  J  etc. 


No.  1490. 
Order  Confirming  Sale. 

(Code  Civ.  Pro.,  §2776.) 

[At,  etc.,  as  in  form  No.  1394.] 
[Title  of  proceeding.  ] 

On  reading  and  filing  the  report  of  sale  of  A.  B.  [executor 
of  the  will]  of  C.  D.,  deceased,  of  the  real  property  described 

in  the  decree  made  herein  on  the day  of , 

18 — ,  pursuant  to  the  said  decree  and  the  order  directing 
the  execution  of  the  same,  which  report  bears  date  on  the 
day  of ,  18 — ,  and  due  notice  of  this  appli- 
cation, as  prescribed  by  me,  having  been  given  to  each  party 
who  has  appeared  in  the  above  entitled  proceeding,  and  on 
motion  of ,  after  hearing,  etc.  : 

It  is  hereby  ordered,  that  the  said  report  and  the  said 
sale  be  and  the  same  are  hereby  confirmed  as  to  [describe 
parcels  if  the  sale  is  confirmed  only  in  part]. 

And  it  is  further  ordered,  that  the  said  [executor]  be  and 
he  is  hereby  directed  to  execute  the  proper  conveyance  [or 
conveyances],  upon  compliance  on  the  part  of  the  purchaser 
[or  purchasers]  with  the  terms  of  said  sale. 

F.  W.,  Surrogate. 

>  As  to  mode  of  sale  and  notice,  see  made  by  the   surrogate,   see   section 

section   2772,    Code   Civ.   Pro.;   as  to  2773   (id.) ;   as  to  who  may  and  who 

private  sale,   see  same  section;   that  may  not  purchase,   see   section   2774 

distinct   parcels  must   be   separately  (id.).     And  see  Stilwell  v.   Swarthout 

Fold,  unless  otherwise  directed  by  the  (81  N.  Y.,  109). 

decree,  or  in  the  order  to  execute  the  See,  also,  amendment  to  section  2775, 

same,    or  in  an   order  subsequently  id.,  by  ch.  213  of  Laws  of  1885. 


SURKOGATES'    CoURTS.  1343 

No.  1491. 
Deed  of  Executor  or  Administrator. 

(Code  Civ.  Pro.,  g  2776.) 

This  indenture  made  the day  of in  the 

year  18 — ,  between  A.  B.,  executor  of  the  will  of  C.  D.,  late 

of ,  deceased,  of  the  first  part,  and  J.  T.,  of , 

of  the  second  part,  Avitnesseth, 

Whereas,  F.  W.,  Esq.,  surrogate  of  the  county  of , 

heretofore  made  a  decree,  dated ,  18 — ,  directing  the 

premises  hereinafter  described,  or  so  much  thereof  as  was 
necessary  in  order  to  pay  the  debts  and  funeral  expenses  of 
the  said  decedent,  as  established  by  the  said  decree,  to  be 
sold  for  the  payment  of  the  said  debts  {or  funeral  expenses] 
by  said  A.  B.,  executor  as  aforesaid,  ui)on  his  filing  a  bond 
as  prescribed  by  law  ;  and. 

Whereas,  the  said  [executor]  duly  filed  a  bond  as  required 
by  said  order  ;  and. 

Whereas,  an  order  was  thereupon  duly  made  by  the  said 
surrogate  directing  the  execution  of  the  said  decree  by  the 
said  [executor]  ;  and. 

Whereas,  [the  whole]  of  the  premises  described  in  said 
decree  were  accordingly  sold  by  the  said  [executor]  on  the 

day  of ,  18 — ,  at  public  auction  at  the 

,  in  the  [city]  of  — ,  in  the  county  of 

and  State  of  New  York,  that  being  the  county  where  the 
said  premises  are  situated,  due  notice  of  the  time  and  place 
of  said  sale  having  been  given  according  to  law  ;  and. 

Whereas,  the  party  of  the  first  part  did,  on  the 

day  of ,  18 — ,  file  with  said  surrogate  his  report  of 

said  sale,  in  pursuance  of  the  said  ordei-  and  of  the  statute 
in  such  case  made  and  provided  ;  and. 

Whereas,  the  said  surrogate,  after  examining  the  said 

proceedings  did,   on  tlie day  of ,  18 — , 

make  an  order  confirming  the  said  rei)ort  and  the  said  sale, 
and  directing  the  said  party  of  the  first  pni-t  to  execute  a 
conveyance  of  the  said  real  property  to  the  paity  ol"  the 
second  part,  to  whom  the  said  X)remises  \or  the  y);n'cel  of 
said  premises  hereinafter  described]  were  sold  :if  the  sjiid 
sale,  liH  being  the  liighest  bidder  for  the  same,  for  tlie  sum 
hereinafter  mentioned. 


1344  Forms  F^elating  to 

Now,  this  indenture  further  witnesseth,  that  the  said 
party  of  the  first  part,  in  pursuance  of  the  said  sale  and  of 
the  said  orders  of  the  said  surrogate,  and,  in  pursuance  of 
the  statutes  of  this  State  in  such  case  made  and  provided, 

and  also  for  and  in  consideration  of  the  sum  of 

dollars,  lawful  money  of  the  United  States  of  America,  to 
him  in  hand  paid  by  the  said  party  of  the  second  part,  the 
receipt  whereof  is  hereby  acknowledged,  hath  bargained, 
sold,  granted  and  conveyed,  and  by  these  presents  doth  bar- 
gain, sell,  grant  and  convey,  unto  the  said  party  of  the 
second  part,  his  heirs  and  assigns  forever,  all  that  certain, 
etc.  [describe  the  premises  conveyedl : 

Together  with  the  privileges  and  appurtenances  there- 
unto belonging  or  in  any  way  appertaining,  and  all  the 
estate,  right,  title  and  interest  which  the  said  C.  D.,  de- 
ceased, had  at  the  time  of  his  death,  of,  in  and  to  the  same 
free  and  discharged  from  all  claims  of  dower  of  J.  D., 
widow  of  the  said  C.  D.,  deceased ;  subject,  however,  to  all 
charges  by  judgment,  mortgage  or  otherwise,  upon  the  lands 
so  sold,  existing  at  the  time  of  the  death  of  the  said  CD.:' 

To  have  and  to  hold  the  above  described  and  conveyed 
premises,  with  the  appurtenances,  and  all  the  estate,  right 
and  interest  which  the  said  C.  D.,  at  the  time  of  his  death, 
had  therein,  unto  the  said  party  of  the  second  par.t,  his 
heirs  and  assigns  forever  as  fully  and  amply  as  the  said 
party  of  the  first  part  might,  could  or  ought  to  sell  and  con- 
vey the  same,  by  virtue  of  the  orders  above  recited  and  of 
the  statutes  of  this  State  made  and  j^rovided  or  otherwise. 

In  witness  whereof,  the  said  party  of  the  first  part,  hath 
hereunto  set  his  hand  and  seal  the  day  and  year  first  above 
written.' 

[l.  s.]  a.  B.,  Executor. 

Sealed  and  delivered  in  presence  of . 

[Acknowledgment  as  in  form  No.  340,  or  proof  as  in 
form  No.  538.] 

*  See  section  2778,  Code  Civ.  Pro.,  2783;  as  to  what  irregularities  will  not 
and  see  amendment  to  that  section  by  affect  the  purchaser's  title,  see  Code 
ch.  735  of  Laws  of  1894.  Civ.  Pro.,  §  2784;  Stilwell  v.  Swart- 

*  See,  as  to  sale  of  interest  of  deced-  hout  (81  N.  Y.,  109),  O'Connor  v.  Hug- 
ent  under  contract  for  the  purchase  of  gins  (113  id.,  .511),  and  chapter  525  of 
real  property,  Code  Civ.  Pro.,  %%  2779-  Laws  of  1895. 


Surrogates'  Courts.  1345 

No.  1492. 
Order  for  Publication  of  Notice  of  Distribution. 

(Code  Civ.  Pro.,  §  3787.) 

[At,  etc.,  as  in  form  No.  1394.] 
[Title  of  proceeding.] 

A.  B.,  the  [executor  of  the  will]  of  C.  D.,  late  of  the  city  of 

,  deceased,  having  paid  into  the  surrogate's  court 

of county  and  to  the  county  treasurer  of  said  county 

the  moneys  arising  from  the  sale  [or  mortgage,  or  lease] 
of  the  real  estate  of  the  said  C.  D.,  lately  made  by  him 
under  the  decree  of  the  said  surrogate,  and  the  order  direct- 
ing the  execution  thereof : 

It  is  hereby  ordered,  that  the  balance  of  the  proceeds  of 
said  sale,  after  making  the  necessary  deductions  therefrom, 
be  distributed  by  the  surrogate  according  to  law,  at  the  sur- 
rogate' s  office  in  the  [city]  of ,  on  the day 

of next,  and  that  notice  of  the  time  and  place  of 

making  the  said  distribution,  be  published  at  least  once 
in  each  of  the  six  weeks  immediately  preceding  the  same,  in 
the :,  a  newspaper  published  in  the  said  county  of 


F.  W.,  Surrogate. 


No.  1493. 

Notice  of  Distribution  of  Proceeds  of  Disposition  of  Real 

Property. 

(Code  Civ.  Pro.,  §2787.) 

[Title  of  proceeding.] 

Notice  is  hereby  given,  that  the  balance  remaining  of  the 
proceeds  of  the  sale  [or  lease,  or  mortgage],  after  making  the 
necessary  deductions  therefrom,  of  the  real  estate  of  C.  D., 

late  of  the  [city]  of ,  deceased,  lately  made  under 

the  decree  and  order  directing  the  execution  thereof,  of  the 

surrogate  of  the  county  of ,  by  A.  T5.,  the  executor 

of  the  will  of  the  said  C.  D.,  will  be  distributed  by  the  said 
surrogate  according  to  law,  at  the  surrogate's  office  in  the 
169 


1346  Forms  Rkla'ping  to 

[city]  of ,  on  the day  of ,  18 — ,  at 

o'clock  in  tlie noon  of  that  day. 

Dated ,  18 — . 

F.  W.,  Siu'rogate  of County. 


No.  1494. 

Supplementary  Decree  for  Distribution  of  Proceeds  of 

Sale. 

(Code  Civ.  Pro.,  §2791.) 

[At,  etc.,  as  in  form  No.  1394.] 
[Title  of  proceeding.] 

Notice  that  distribution  of  the  proceeds  of  the  sale  \or 
lease,  or  mortgage]  of  the  real  estate  in  this  matter,  would 

be  made  on  the day  of ,  having  been  duly 

published,  and  the  whole  amount  of  the  money  paid  into 

the  surrogate's  court  of county,  and  to  the  county 

treasurer  of county,  on  the  said  sale  [or  mortgage, 

or  lease],  being  dollars   and  [state  appearances], 

and  the  surrogate  having  heard  the  proofs  and  allega- 
tions of  the  parties  so  appearing  [and  the  matter  having 
been  adjourned,  from  time  to  time,  to  this  day],  and  the 
surroo-ate  having  allowed  from  the  said  amount  the  sum  of 

dollars  for  the  charges  and  expenses  of  the  sale- 

[or  mortgage,  or  lease]  of  said  premises  and  of  the  publica- 
tion of  the  notice  of  distribution,  and  the  other  actual  dis- 
bursements attending  the  distribution,  lefiving  in  the  said 
surrogate's  court,  undistributed,  the  sum  of dol- 
lars ;  and  J.  D.,  the  widow  of  the  testator,  being  entitled 
to  doAver  in  the  lands  sold,  and  she  having  consented,  ac- 
cording to  law,  to  take  a  gross  sum  in  lieu  of  said  dower : ' 

It  is  hereby  ordered,  that  distribution  of  the  said  sum  be 
made  as  follows  :  that  is  to  say,  to  the  said  widow,  the  sum 
of dollars,  being  the  gross  sum  to  which  she  is  enti- 
tled in  lieu  of  her  said  dower,  and  that  the  residue  of  said 
sum  after  paying  therefrom  to  the  petitioner  [or  his  attorney, 

'  For  provisions  as  to  dower,  see  2795,  Code  Civ.  Pro.,  and  forms  Nos. 
eection  2793,  subd.  3,  as  amended  by     1495,  1496. 

ch.  G52  of  Laws  of  1886,  sections  2794,         See,  also.  Matter  of  Zahrt  (94  N.  Y.» 

605). 


Surrogates'  Courts. 


1347 


M.  F.],  the  sum  of 


dollars,  hereby  awarded  to  said 


petitioner  as  his  costs  of  this  proceeding,'  be  distributed 
among  the  creditors  of  the  said  testator,  whose  debts  have 
been  established,  and  recited  by  the  decree  directing  said 
sale  [excepting  the  following  claims  allowed  by  said  decree, 
and  which  have  been  again  controverted,  upon  due  notice  to 
the  claimant,  as  directed  by  me,  and  rejected  upon  this 
hearing  (name  such  claims,  if  any)],''  the  amounts  to  be  paid 
to  said  creditors  and  the  order  of  their  payment  being  as 
follows,  to  wit :  the  said  j)ersons  names  are  mentioned  in 
the  first  column  of  the  following  list,  and  the  amount  due 
to  each  in  the  second  column  ojDposite  each  name,  and  the 
amount  to  which  each  of  said  creditors  is  entitled  on  such 
distribution,  this  day  ordered,  in  the  third  column  opposite 
each  name,  which  list  is  as  follows,  that  is  to  say : 


w.  T 
W.  A, 

Etc. . . 


Amount  ENTm.sD. 


$726  73 

108  92 

Etc. 


[In  case  any  surplus  remains  after  payment  of  the  claims 
in  full,  its  payment  may  be  provided  for/]* 


No.  1495. 
Notice  to  Widow  as  to  Satisfaction  of  Her  Dower. 

(Code  Civ.  Pro.,  §  2793,  subd.  3.) 

[Title  of  proceeding.] 

Take  notice,  that  A.  B.,  the  [executor  of  the  will]  of  C.  D., 


^  As  to  costs,  etc.,  see  Code  Civ.  Pro., 
§§  2556-2561,  and  §  2563,  id.  ;  and  see 
Lonj^  V.  Olnasted  (3  Dein.,  581). 

'  See  section  27SS  and  former  subd. 
7,  now  Bubd.  8,  of  fiection  2793,  Code 
Civ.  Pro.,  as  to  this  clause. 

'  See  sections  2790,  2791,  Code  Civ. 
Pro.,  aa  to  disposal  of  surplus.  Also 
arntindments  to  section  2791,  by  ch. 
735  of  Laws  of  1S04. 

*  As   to    ordei-   of    dlHtiibulion,    see 


section  2793,  Code  Civ.  Pro.,  to  meet 
the  various  cases  arising,'-  under  which 
section  this  form  is  to  be  adapted. 

See  as  to  delivering-  certified  copies 
of  the  supplementary  decree  to  the 
county  treasurer,  and  his  distribution, 
etc.,  pursuant  thereto,  id.,  §  2792. 

As  to  surplus  due  to  an  infant,  or  to 
a  party  in  remainder  or.revei-sion,  see 
section  2796,  id. 


1348  Forms  Relating  to 

late  of  the  [city]  of ,  deceased,  lias  paid  into  the  sur- 
rogate's court  of county,  and  to  the  county  treas- 
urer of county,  the  moneys  arising  from  the  sale 

lately  made  by  him  of  the  real  estate  of  the  said  testator, 
pursuant  to  the  decree  of  the  surrogate  of  said  county,  au- 
thorizing said  sale  and  to  the  order  of  said  surrogate  direct- 
ing the  execution  of  the  said  decree  by  said  [executor],  and 
that  the  said  surrogate  will  satisfy  your  claim  of  dower 
upon  the  lands  so  sold,  by  the  i)ayment  to  you  of  such  sum 
in  gross,  as  shall  be  equal  to  the  value  of  your  right  of 
dower  in  the  said  gross  proceeds  to  be  ascertained  by  said 
surrogate  according  to  the  j)rinciples  applicable  to  life  an- 
nuities ;  if  you  shall  consent  before  or  on  the day  of 

,   18 — ,  to  accept  such   sum  in  lieu  of  your  said 

dower,  by  an  instrument  under  seal,  duly  acknowledged  or 
proved  and  certified  in  like  manner  as  a  deed  to  be  recorded 
in  the  said  county  ;  and  that  if  such  consent  be  not  given 
within  the  time  above  mentioned,  then  the  said  surrogate 
will  set  apart  one- third  of  the  purchase  money  of  the  said 
real  estate,  to  satisfy  your  claim  of  dower,  and  will  cause 
the  same  to  be  invested  according  to  law. 

Dated ,  18—. 

Yours,  etc., 

[Signature  as  in  form  No.  1493.] 
To  J.  D.,  tlie  widow  ofC.  D.,  deceased. 


No.  1496. 

Widow's  Release  of  Dower,  and  Consent  to  Accept  a  Gross 

Sum. 

(Code  Civ.  Pro.,  §  2793,  subd.  3.) 

Whereas,  A.  B.,  the  [executor  of  the  will  of]  C.  D.,  late 

of  the  [city]  of ,  deceased,  my  late  husband,  has 

recently  sold  the  real  estate  whereof  the  said  C.  D.,  died 

siezed,  under  a  decree  of  the  surrogate  of county, 

authorizing  him  to  sell  the  same  for  the  payment  of  the 
debts  [or  funeral  expenses]  of  the  said  deceased,  and  the 
order  of  said  surrogate  directing  the  execution  of  the  said 
decree,  and  has  paid  the  proceeds  of  such  sale  into  the  sur. 


Surrogates'  Courts.  1349 

rogate's  court  of  the  county  and  to  the  county  treasurer  of 
said  county  for  the  purjpose  of  distribution. 

Now,  these  presents  witness  that  I,  J.  D.,  of  the  [city]  of 
,  widow  of  the  said  C.  D.,  deceased,  do  hereby  con- 
sent to  accept,  in  lieu  of  my  dower  in  said  real  estate,  a  sum 
to  be  ascertained  by  the  said  surrogate  equal  to  the  value 
of  my  right  of  dower  in  the  gross  proceeds  of  such  sale, 
according  to  the  principles  applicable  to  life  annuities. 

And  these  presents  further  witness,  that  I,  the  said  J.  D., 
widow  as  aforesaid,  do  hereby  acknowledge  that  I  have  re- 
ceived from  F.  W.,  Esq.,  surrogate  of  the  county  of , 

the  sum  of ■  dollars  and : cents,  pursuant  to 

the  foregoing  consent,  in  full  discharge  and  satisfaction  of 
all  my  right  and  claim  of  dower  upon  the  lands  so  sold  as 
aforesaid. 

In  testimony  whereof,  I  have  hereunto  set  my  hand  and 

seal,  this day  of ,  18 — .  ^ 

J.  D.     [seal.] 

Sealed  and  delivered  in  presence  of . 

[Acknowledgment  as  in  form  'No.  340,  or  proof  as  in  form 
No.  538.] 

TITLE  VI. 

FORMS    RELATING   TO   PROVISIONS    RELATING   TO   A   TESTA- 
MENTARY TRUSTEE. 

(Code  Civ.  Pro.,  Ch.  18,  Tit.  6.) 

No.  1497.     Petition  by  testamentary  trustee  for  iinal  settlement  of  his  accounts. 

1498.  Petition  by  person  interested  in  the  estate  for  intermediate  account 

by  testamentary  trustee. 

1499.  Petition  to  compel  payment  of  money  or  delivery  of  personal  prop- 

erty by  testamentary  trustee. 

1500.  Citation  pursuant  to  petition  for  payment  of  money  or  delivery  of 

personal  property  by  testamentary  trustee. 

1501.  Answer  of  testamentary  trustee  to  petition  to  compel  payment  of 

money  or  delivery  of  personal  i)roporty. 

1502.  Decree  dismissing  petition,  etc..  on  filing  of  answer. 

1503.  Petition  l)y  persons  interested  in  execution  of  trusts,  etc.,  for  judi- 

cial settlement  of  account  of  testamentary  trustee. 

1504.  Petition  of  testamentary  trustee  for  leave  to  resign  his  trust 

1505.  Petition  for  security  from  testamentary  trustee. 

1506.  Petition  for  removal  of  testamentary  trustee. 

'  A.M  to  provi.-ioiiH  in  caseH  in  wliich     BtilxliviKion  3  of  §  2793,  Code  Civ.  Pro., 
widow  Ih  an  infant,  lunatic,  or  other-     by  ch.  652  of  Laws  of  1886. 
wiHe  incompetent,   eee  amendment  to 


1350  FuUMS    JtKLATlNG    TO 

No.  1497. 

Petition  by  Testamentary  Trustee  for  Pinal  Settlement  of 

His  Accounts. 

(Code  Civ.  Pro.,  J^  280^,  as  ameuded  by  chapter  518  of  Laws  of  1885, 
and  section  3810,  Code  Civ.  Pro.) 

See  form  No.  1479,  which  may  be  adapted  to  this  peti- 
tion, and  see  notes  to  that  form,  and  see  In  the  Matter  of 
Hood  (20  Week.  Dig.,  310)  ;  and  for  proceedings  under  the 
petition,  see  Code  of  Civil  Procedure,  sections  2811,  2812, 
and  sections  therein  referred  to,  and  forms  under  these  sec- 
tions ;  as  to  commissions  of  testamentary  trustee,  see  note  2 
to  form  No.  1480.i 


No.  1498. 

Petition  by  Person  Interested  in  the  Estate  for  Intermedi- 
ate Account  by  Testamentary  Trustee. 

(Code  Civ.  Pro.,  §  2803.) 

To  the  Surrogate  of County : 

The  petition  of  A.  B.,  of  ,  respectfully  shows, 

that  he  is  a  j^erson  interested  in  the  trust  estate,  etc.,  under 
the  will  of  C.  D.,  late  of ,  deceased  [state  how  in- 
terested]. 

That  the  will  of  said  C.  D.  was  duly  admitted  to  probate 

by  a  decree  of  the  surrogate  of county,  made  and 

entered  on  the day  of — ,  18 — ,  and  that  E. 

F.,  of [the  executor  named  in  said  will  was,  by  said 

decree,  and  by  letters  testamentary,  duly  issued  to  him 
thereupon,  appointed  executor  thereof,  and],  is  a  testament- 
ary trustee  thereunder  [as  such  executor]  of  the  following 
trusts  [state  same]. 

That  said  CD.  has  entered  upon  the  discharge  of  said 
trusts  [make  further  necessary  stntements,  according  to  the 
facts,  and  conclude  with  prayer,  ns  follows]: 

Wherefore  your  petitioner  prays,  that  an  older  maybe 
made  requiring  the  said  E.  F.  to  render  an  iutprmediate  ac- 
count of  his  procppdings  as  such  testamentaiy  trustee,  pur- 
suant to  the  provisions  of  title  sixth  of  chapter  eighteenth 

'  iSee  Van  biuderen  v.  Lawrence  (50     liuu,    27-),    Matter   of  Rutherford  (5 

Dem.,  499). 


SUREOGATES'    COUKTS.  1351 

of  the  Code  of  Civil  Procedure,  and  for  such  other  and  fur- 
ther relief  as  may  be  necessary.' 

Dated ,  18—. 

A.  B. 

[Verification  as  in  form  No.  52.] 


No.  1499. 

Petition  to  Compel  Payment  of  Money  or  Deliyery  of  Per- 
sonal Property  by  Testamentary  Trustee. 

(Code  Civ.  Pro.,  §  2804.) 

SURROGATE'S  COURT— New  York  County. 


In  the  Matter  of  the  Estate  of  / 
E.  McC,    Deceased.  j" 

To  the  Surrogate  of  the  County  of  New  TorJc : 

The  petition  of  P.  J.  B.  respectfully  shows  unto  yonr 
honor,  that  on  or  about  the  sixteenth  day  of  March  1859, 
E.  McC,  of  the  city  of  New  York,  widow,  departed  this 
life,  after  making  and  publishing  her  last  will  and  testa- 
ment, dated  January  27,  1855  [with  several  codicils  thereto], 
by  which  she  appointed  P.  A.  H.  J.  and  D.  A.  W.  her  ex- 
ecutors and  trustees. 

That  said  will  and  codicils  were  duly  proved  before  the 
surrogate  of  the  county  of  New  York,  on  the  fifth  day  of 
May,  1859,  and  letters  testamentary  thereon  were  duly  issued 
to  the  executors  named  therein,  both  of  whom  entered  upon 
the  discharge  of  their  trust,  and  continued  to  act  until  the 
death  of  said  D.  A.  W.,  Avliich  occurred  on  the  seventeenth 
day  of  November,  1878,  since  which  time  said  P.  A.  J.  has 
continued,  and  still  continues,  to  act  as  sole  trustee. 

That  in  and  by  the  seventh  section  of  said  will,  the  said 
E.  McC.  did  give,  devise  and  bequeath  the  remaining  eighth 
part  of  her  residuary  estate,  nfror  deducting  therefrom  the 
sum  of  two  thousand  three  hundred  dollnrs,  thor.'tofore  ad 
vanced  to  said  P.  J.  B.,  from  the  pi-incipnl  of  Ihi-  cslnte, 
and  twelve  thousand  dollars,  the  expense  occasion. -d  liej-  by 
said  P.  J.  B.'s  late  ])roceedings  in  tlie  Sn])]-enie  Court,  unto 


'  See  in  Matter  of  Estate  of  McCurlcr  (!)4  N.  Y.,  558). 


1352  Forms  Relating  to 

the  said  D.  A.  W.  and  P.  A.  J.,  executors,  and  the  sur- 
vivors of  them,  during  the  natural  life  of  her  grandson, 
P.  J.  B.,  upon  trust,  to  manage  and  improve,  invest  and  re- 
Invest  the  same,  from  time  to  time,  during  his  natural  life, 
in  such  manner  as  they,  or  the  survivor  of  them,  shall  deem 
most  beneficial,  and  the  interest  and  income  thence  arising, 
to  apply  to  the  use  of  said  Peter  during  his  natural  life, 
and,  upon  his  decease,  leaving  issue,  to  pay  and  divide  the 
principal  among  his  then  surviving  children,  and  the  law- 
ful issue,  if  any,  who  may  then  be  dead,  leaving  issue  jper 
stirpes  and  not  per  capita^  and  in  case  of  his  decease,  with- 
out leaving  laAvful  issue,  then  to  be  divided  between  his 
next  of  kin  according  to  law. 

That  said  trust  fund  so  directed  to  be  invested  amounts, 
as  your  petitioner  is  informed  and  believes,  to  the  sum  of 
sixteen  thousand  five  hundred  dollars. 

That  petitioner  has  demanded  of  said  P.  A.  J.,  testa- 
mentary trustee  as  aforesaid,  payment  of  the  annual  income 
arising  from  said  trust  fund,  but  said  J.,  although  conced- 
ing part  of  said  annual  income,  to  wit :  the  sum  of  three 
hundred  and  thirty-seven  dollars  and  seventy-five  cents  to 
be  in  his  possession,  refuses  to  pay  the  same,  or  any  part 
thereof,  to  petitioner,  claiming  that  by  a  certain  instrument 
of  assignment  by  i3etitioner  to  his  wife  in  her  life-time,  peti- 
tioner had  divested  himself  of  his  beneficial  interest  in  said 
trust -fund,  whereas  this  j)etitioner  claims  and  insists  that, 
as  a  matter  of  law,  his  said  interest  was  inalienable,  and 
that  whatever  instruments  of  assignment  in  relation  thereto 
were,  or  have  been,  made  by  him  are  void,  convey  no  inter- 
est in  said  trust  estate  to  the  assignee  therein  named,  and 
do  not  divest  petitioner  of  his  said  beneficial  estate  and 
interest  therein. 

Petitioner  further  shows,  that  said  P.  A.  J.,  has  mis- 
managed the  trust  estate  in  his  hands  to  your  petitioner's 
loss,  in  that  he  \^Tongfully  sold  a  one  thousand-dollar  gold- 
bearing  bond  to  pay  a  mortgage  of  your  petitioner,  when 
said  P.  A.  J.  had  other  funds  in  his  hands,  applicable 
thereto,  drawing  only  two  per  cent  interest. 

And  petitioner  further  shows,  that  more  than  one  year 
has  elapsed  since  the  probate  of  the  will  aforesaid,  and 


Surrogates'  Courts.  1353 

there  has  been  no  judicial  settlement  of  the  account  of  the 
said  trustee. 

Wherefore  your  petitioner  prays,  that  a  judicial  settle- 
ment of  said  account  may  be  had  according  to  law  ;  that 
said  P.  A.  J.,  trustee,  msij  be  cited  to  show  cause  why- 
he  should  not  render  and  settle  his  account,  and  also  why 
he  should  not  pay  this  petitioner  the  sum  herein  already 
mentioned  of  three  hundred  and  thirty-seven  dollars  and 
seventy-five  cents,  conceded  to  be  in  his  hands,  and  what- 
ever other  amount  may  be  found  on  such  accounting  to  be 
in  his  hands  or  under  his  control,  being  the  annual  income 
of  such  trust  estate,  and  why  he  should  not  abide  such  fur- 
ther or  other  order  as  the  court  may  see  fit  to  grant  in  the 
premises.' 

Dated ,  18—. 

P.  J.  B. 

[Verification  as  in  form  No.  52.] 


No.  1500. 

Citation  Pursuant  to  Petition  for  Payment  of  Money  or  De- 
livery of  Personal  Property  by  Testamentary  Trustee. 

(Code  Civ.  Pro.,  §2804.) 

The  People  of  the  State  of  New  York,  to  E.  F.,  testamentary 
trustee  under  the  will  of  0,1).,  late  of ,  deceased  :* 

Whereas,  A.  B.,  has  lately  presented  to  the  surrogate's 

court  of county  his  written  petition,  duly  verified, 

dated ,  18 — ,  praying  for  a  decree  directing  the  pay- 
ment to  him  of  the  sum  of dollars  [or  the  delivery 

to  him  of  certain  personal  property]  by  you  as  such  testa- 
mentary trustee. 

Now,  therefore,  you  are  hereby  cited  and  required  to  be 

and  appear  before  the  surrogate  of county,  at,  etc., 

on,  etc.,  at o'clock  in  the noon  to  show 

cause  why  such  a  decree  should  not  be  made. 

In  testimony,  etc.  [conclude  ns  in  general  fomi  No.  1345]. 
[l.  s.]  [Signature  ns  in  form  No.  1345.] 


'  The  above  is  substantially  the  form  *  See,  also,  aa  to  other  persoriH  to  be 

of  Ihe  i)etition    iti  the  Matter   of  Mc-  (;ite<l,  if  n«ceHaary,  Code!   Civ.   Pro.,  ^ 

Carter  (94  N.  V.,  558).  liSOG,  and  Matter  of  Odell  (.V2  Hiui,88). 
170 


1354  FoKMS  Relating  to 

Is'o.  1501. 

Answer  of  Testameiitary  Trustee  to  Petition  to  Compel 
Payment  of  Money  or  Delivery  of  Personal  Property. 

(Code  Civ,  Pro.,  §  2805.) 

Substantially  as  in  answer,  form  No.  1468,  making  neces- 
sary changes,  and  see  notes  to  that  form  ;  and  see  Matter  of 
Estate  of  McCarter  (94  N.  Y.,  658). 


No   1502. 
Decree  Dismissing  Petition,  etc.,  on  Filing  of  Answer. 

(Code  Civ.  Pro.,  §  2805.) 

Substantially  as  in  form  No.  1469,  adapting  the  provisions 
to  the  facts. 


No.  1503. 


Petition  by  Person  Interested  in  Execution  of  Trusts, 
etc.,  for  Judicial  Settlement  of  Account  of  Testament- 
ary Trustees. 

(Code  Civ.  Pro.,  §  2808.) 

Substantially  as  in  form  No.  1475,  adapting  the  allega- 
tions to  the  facts.* 

No.  1504. 

Petition  of  Testamentary  Trustee  for  Leare  to  Resign  His 

Trust,  etc. 

(Code  Civ.  Pro.,  §2814.) 

This  petition  must  set  forth  the  facts  upon  which  the  ap- 
plication is  founded,  and  must,  in  all  other  respects,  con- 
form to  a  petition  presented  for  a  judicial  settlement  of  the 
acccnmt  of  a  testamentary^  trustee  as  prescribed  in  title 
sixth  of  chapter  nineteenth  of  the  Code  of  Civil  Procedure 
[§  2814,  id.].  See  form  No.  1497,  and  the  forms,  etc.,  re- 
ferred to  under  that  form  for  this  petition  and  proceedings 
thereunder.^ 

'  For  proceedinga  upon  return  of  "  See  Rogers  v.  Rogers  (4  Redf., 
citalion,  see  forma  Nos.  1476,  1478,  521),  EUaworth  v.  Hinton  (21  State 
and  §J  272S,  2729,  2808,  Code  Civ.  Pro.     Rep.,  730). 


Surrogates'  Courts.  1355 

No.  1505. 
Petition  for  Security  from  Testamentary  Trustee. 

(Code  Civ.  Pro.,  §2815.) 

To  the  Surrogate  s  Court  of County : 

The  petition  of  A.   B.,  of ,  respectfully  sliow^ 

that  heretofore  M.  B.,  of ,  clex)artecl  this  life  on  or 

about  the day  of ,  18—,  leaving  a  will  [by 

which  he  appointed  M.  N.  executor  thereof,  and  by  which 
will  he  gave  and  bequeathed  to  said  executor  {or  to  P.  R.) 
in  trust  (state  nature  of  trust)]. 

That  said   will  was   duly   admitted   to   probate   on   the 

day  of ,  18 — ,  by  the  surrogate  of 

county,  iti  which  county  said  M.  B.  resided  at  the  time  of 
his  death  [and  on  the  same  day  letters  testamentary  there- 
upon were  duly  issued  by  said  surrogate  to  said  M.  N.,  and 
he  duly  qualified  as  such  executor],  and  entered  \or  that 
said  P.  R.  entered]  upon  the  discharge  of  his  duties  as  such 
[executor  and]  trustee. 

That  [as  your  petitioner  is  informed  and  believes]  [here 
set  forth  facts  respecting  the  trustee,  the  existence  of  which, 
if  it  was  interposed  as  an  objection  to  granting  letters  testa- 
mentary to  a  person  named  as  executor  in  a  will,  Avould 
make  it  necessary  for  such  person  to  give  security  in  order 
to  entitle  himself  to  letters  ;  see  form  No.  1410]. 

And  your  petitioner  shows,  that  he  is  interested  in  the 
execution  of  the  said  trust  [state  in  what  manner,  if  it  does 
not  appear  from  the  above  recital  of  the  trust],  and  your 
petitioner  prays  for  a  decree  diiecting  the  said  M.  N.  \or 
P.  R.]  to  givesecurity  for  the  performance  of  his  said  trust, 
and  that  he  may  be  cited  to  show  cause  why  sucli  a  decree 
should  not  be  made.' 

Dated ,  18—. 

A.  B. 

[Verification  as  in  form  No.  52.] 

'  For  form  of  decree  upon  objections.  See,  also    Matter  of  Wliifchcad  (2 

see   form    No.    1411,    whicli    may    he  D«in.,   227i,   Kelsey  v.  Vjim  (".•imp  (3 

adapted   lo  the  dc(;rcc  ui)on  lliis  i»cti-  Dem.,  filJO),  Mor^^an  v.  Mor-riiii  ClOem., 

lion.  G12),  and  notes  to  form  No.  1410. 

For  form  of  bond  of  trustee,  see  form 
No.  1413. 


1356  Forms  Relating  to 

No.  ]506. 
Petition  for  Removal  of  Testaiueiitary  Trustee. 

(Code  Civ.  Pro.,  §2817.) 

See  form  No,  1449,  and  notes  thereto  ;  and  see,  also,  Sav- 
age V.  Gould  (60  How.,  234),  In  re  Clapp  (4  Redf.,  200). 


TITLE  yil. 
FORMS  RELATING  TO  PROVISIONS  RELATING  TO  A  GUARDIAN. 

Article  First. 

PORMS    RELATING    TO    THE    APPOINTMENT,    REMOVAL    AND 
RESIGNATION  OF  A  GENERAL  GUARDIAN. 

(Code  Civ.  Pro.,  Cli.  18,  Tit.  7,  Art.  1.) 

No.  1507.     Petition  by  infant  over  fourteen   for  appointment  of  a  general 
guardian. 

1508.  Affidavit  as  to  circumstances  of  minor. 

1509.  Citation  upon  petition  for  appointment  of  general  guardian. 

1510.  Decree  appointing  general  guardian  of  infant. 

1511.  Petition  by  mother  of  infant  under  fourteen  years  of  age  for  ap- 

pointment of  temporary  guardian. 

1512.  Bond  of  general  guardian  of  infant. 

1513.  Letters  of  guardianship. 

1514.  Petition  for  revocation  of  letters  of  gurdianship. 

1515.  Citation  to  guardian  upon  petition  for  revocation  of  his  letters. 
151C.     Decree  revoking  letters  of  guardianship. 

1517.  Order  suspending  guardian  during  pendency  of  proceeding  for  re- 

vocation of  letters. 

1518.  Petition  by  general  guardian  for  revocation  of  letters. 

1519.  Citation  upon  application  of  general  guardian  for  revocation  of 

letters. 

1520.  Order  allowing  petitioner  to  account  for  the  purpose  of  being  dis- 

charged. 

1521.  Decree  revoking  letters  and  discharging  guardian. 

1522.  Petition  for  ancillary  letters  of  guardianship. 

1523.  Decree  granting  ancillary  letters  of  guardianship. 


No.  1507. 

Petition  by  Infant  over  Fourteen  for  Appointment  of  a 
General  Guardian. 

(Code  Civ.  Pro.,  g§  3822,  2823.) 

To  the  Surrogate's  Court  of  ilie  County  of : 


The  petition  of  A.  B.,  an  infant  of  the  age  of  [fourteen] 


Surrogates'  Courts.  1367 

years  and  upwards,  respectfully  shows,  that  your  petitioner 

resides  at ,  in  the  county  of  ,  and  is  the 

daughter  of  C.  B.,  late  of,  etc.,  deceased,  and  was  of  the 

age  of  [fourteen]  years  on  the day ,  18 — , 

and  that  the  mother  of  your  petitioner  is  also  dead  [or  is 

living  at ,  in  the  county  of ,  in  (this  State)]/' 

[*]  That  as  one  of  the  devisees  of  her  said  father,  now 
deceased,  your  petitioner  is  seized  of  and  entitled  to  an 
estate  in  fee,  in  and  to  a  certain  house  and  lot  situated  in 
the  fourth  ward  of  the   city  of  Albany,  and  known  as  lot 

No.  52,  street,  the  gross  income  of  wliich  is  about 

dollars  annually  ;  also   to  a  certain  farm  or  lot  of 

land  situate  in  the  town  of ,  in  the  county  of , 


consisting  of  about  one  hundred  acres,  the  gross  annual  in- 
come of  which  is  about dollars. 

That  she  is  also  entitled  to  the  following  personal  estate, 

viz.:   a  horse  of  the  value  of  about dollars,  two 

cows  of  the  value  of  about dollars  each,  a  promis- 
sory note  given  by  J.  T.  to  her  said  father  previous  to  his 

death,  for  the  sum  of ,  and  interest  from  the 

day  of  — — — .  18 — ,  which  note  became  due  and  payable 

on  the day  of last,  and  that  no  part  thereof 

has  been  paid. 

And  your  petitioner  further  shows,  that  she  has  not,  to 
her  knowledge  or  belief,  any  other  property,  real  or  per- 
sonal, nor  any  right  or  interest  in  any  other  than  that  above 
specified. 

That  no  general  guardian  of  her  person,  or  of  her  prop- 
erty, has  been  appointed,  either  by  a  court  of  competent 
jurisdiction  of  this  State,  or  by  the  will  admitted  to  probate 
or  authenticated  and  recorded,  as  prescribed  in  section  2851 
of  the  Code  of  Civil  Procedure,  of  her  said  father,  or  by  the 
deed  of  her  said  father   or  of  her  said  mother.' 

[Or  state  appointment  of  a  general  guardian  of  lier  per- 
son or  property,  or  both,  by  eit*ier  of  the  above  methods, 


'  See  section  2823,  Code  Civ.  Pro. ,    tioner  are  known  to  be  living.     (Code 
as  to  surrogate's  court,  to  which  peti-    Civ.  Pro.,  g  2823.) 
tion  is  to  be  presented.  »  See  subd.  1  of  scrtion  2822  of  Code 

*  The  petition  must  state  whctlicr  or    Civ.  Pro. 
not  the  father  and  mother  of  the  peti-        ■*  Sec-  snlxl.  2  of  scetioji  2822  of  Codo 

Civ.  Pro.,  and  section  2851,  id. 


1358  Forms  Relating  to 

and  state  as  follows  :  tliat  the  general  guardian  so  appointed 
has  died  {or  has  become  incompetent  by  reason  of,  state 
same  ;  or  disqualified  by  reason  of,  state  reason  ;  or  refuses 
to  act ;  or  has  been  removed,  stating  how  ;  or  that  his  term, 
of  office  has  expired).'] 

That  the  following  circumstances  render  the  appointment 

of  another  i)erson  than  the  said ,  the  mother  of 

your  said  petitioner,  expedient  (state  circumstances).  ^] 

That  the  only  relative^  of  said  infant  residing  in  the  said 
county  of are  [state  same].[t] 

And  your  petitioner  prays,  that  a  decree  may  be  made 

appointing  the  said ,  the  mother  of  your  petitioner 

\or  P.  M.,  of,  etc.,  physician,  who  is  the  uncle  of  your  peti- 
tioner], the  general  guardian  of  the  person  [and  property] 

\or  property]  of  your  petitioner  [and  that  the  said 

(naming  motlier,  etc.),  may  be  cited  to  show  cause  why  such 
a  decree  should  not  be  made].'' 

Dated ,  18—. 

A.  B. 

[Verification  as  in  form  No.  62.] 

Consent  of  Guardian. 

I  hereby  consent  to  be  appointed  the  general  guardian  of 

the  above  petitioner,  and  I  hereby  offer,  as  my  sureties, 

W.  N.  and  R.  S.,  both  of,  etc. 

Dated ,  18—. 

P.M. 


No.  1508. 
Affidavit  as  to  Circumstances  of  Minor. 

(Code  Civ.  Pro.,  §  2829.) 

County  of ,  ss.: 

F.  B.,  of  the  [city]  of ,  being  duly  sworn,  says,  that 

he  is  acquainted  with  the  property  and  estate  of ,  of 


5  See  Code  Civ.  Pro.,  g  2823.  11  Hun,  41),  In  re  Valentine  (22  Week. 

«  See,  generally,  as   to  prayer  and  Dig.,  175),  as  to  this  proceeding. 

contents  of  petition,  Code  Civ.  Pro.,  A  corporation  may  receive  letters  of 

^§2822,  2823.  2824:  also  see  Matter  of  general    guardianship  of   an    infant's 

Barre   (5  Redf.,  64),  Ledwith  v.  Led-  property.  (Ledwithv.  Ledwith,  sw/wa.) 

^th  (1  Dem. ,  154),  Matter  of  Reynolds  As  to  allegations  in  case  of  non-resi- 


SUREOGATES'    CoURTS.  1359 

,  a  minor  upwards  of  [or  under]  fourteen  years  of 

age  ;  and  that  the  same  consists  of  the  real  and  personal 
estate  mentioned  in  the  annexed  petition,  and  that  the  per- 
sonal estate  of  said  minor  does   not  exceed   the  sum  of 

dollars  ;  and  that  the  annual  rents  and  profits  of 

the  real  estate  of  said  minor  does  not  exceed  the  sum 

of dollars  or  thereabouts. 

F.  B. 
[Jurat  as  in  form  No.  46.] 


No.  1509. 

Citation  upon  Petition  for  Appointment  of  General 
Cruardiau. 

(Code  Civ.  Pro.,  §  2824.) 

The  People  of  the  State  of  New  Yoi'Jc,  to  [name  persons 

cited] :  * 

Whereas,  A.  B.,  of ,  an  infant  of  the  age  of  four- 
teen years  and  upwards,  has  lately  presented  to  the  surro- 
gate's court  of county  her  petition  in  writing  and 

duly  verified  praying  for  the  appointment  of  P.  M.,  of 
,  as  the  general  guardian  of  her  person  [and  prop- 
erty] : 

Now,  therefore,   you  are  hereby  cited  and  required  to 

show  cause  before  the  surrogate  of  county,  at, 

etc.,  on,  etc.,  why  the  prayer  of  the  petition  should  not 
be  granted. 

In  testimony,  etc.  [as  in  form  No.  1345]. 

[l.  s.]  [Signatures  as  in  form  No.  1345.] 

dent  married  woman  see  section  2822  with  the  provision  of  the  R.  S.,  corres- 

of  Code  Civ.  Pro.,  last  sentence;  and  ponding  with  section  2829  of  the  Code 

that  the  husband  of  a  married  woman  of  Civ.  Pro. 
must  be  cited,  see  section  2824,  id.  •  See  sections  2823,  2824,  Code  Civ. 

It  has  been  usual  to  annex  an  afBda-  Pro. 
vit  as  in  form   No.  1508,  to  comply 


1360  Forms  Relating  to 

No.  ir)i{). 

Decree  Appointing  General  Guardian  of  Infant. 

(Code  Civ.  Pro.,  §2825.) 

[At,  etc.,  as  in  form  No.  1394.] 
[Title  of  proceeding.] 

A.  B.,  of ,  an  infant  of  fourteen  years  of  age  [and 

upwards],  having  presented  to  this  court  her  written  jieti- 
tion,  duly  verified,  prajdng  for  the  api^ointment  of  P.  M., 

of ,  as  the  general  guardian  of  her  person  [and  juop- 

erty],  together  with  the  consent  of  the  said  P.  M.  in  writing 
to  become  such  guardian  [and  a  citation  having  been  there- 
upon duly  issued  to  the  proper  persons,  requiring  them  to 

show  cause  before  the  surrogate  of  said couiily, 

on,  etc.,  at,  etc.,  why  the  prayer  of  said  petition  should  not 
be  granted,  and  the  said  citation  having  been  returned  with 
due  proof  of  service  thereof  upon  the  said  persons  to  wh(;m 
the  same  was  directed,  and  [state  apj)earances],  and  the  said 
matter  having  been  duly  adjourned,  from  time  to  time,  to 
this  day ;  and  the  said  surrogate  [having  heard  the  proofs 
and  allegations  of  the  parties,  and]  having  inquired  into  the 
circumstances,  and  being  satisfied  that  the  allegations  of 
the  said  x)etition  are  true  in  fact,  and  that  the  interests  of 
the  said  infant  will  be  promoted  by  the  appointment  of  a 
general  guardian  of  her  person  [and  of  her  property] : 

It  is  hereby  ordered  and  decreed,  that  the  said  P.  M.  be 
and  he  is  hereby  appointed  the  general  guardian  of  the  per- 
son [and  property]  of  the  said  infant,  upon  his  executing 
his  bond  to  the  said  ififant,  with  at  least  two  sureties,  in  the 
penalty  of dollars,  conditioned  that  the  said  guard- 
ian will,  in  all  things,  faithfully  discharge  the  trust  reposed 
in  him,  and  obey  all  lawful  directions  of  the  surrogate  of 

county,  touching  the  trust,  and  that  he  will,  in  all 

respects,  render  a  just  and  true  account  of  all  money  and 
other  property  received  by  him,  and  of  the  application 
thereof,  and  of  his  guardianship,  whenever  he  is  required 
so  to  do  by  a  court  of  competent  jurisdiction.* 

F.  W.,  Surrociate. 

■  See  as  to  bond  required  of  a  gniard-  No.  loT?;  and  see  Rieok  v.  Fish  f1 
fan,  Code  Civ.  Pro.,  §  2830.  and  form     Dem^  75).  ISTichols  v.  McLean  (98  K 


Surrogates'  Courts.  1361 

No.  1511. 

Petition  hj  Mother  of  Infant  under  Fourteen  Tears  of  Age 
for  Appointment  of  Temporary  (Guardian. 

(Code  Civ.  Pro.,  §  2837.) 

To  the  Surrogate' s  Court  of  the  County  of ; 

The  petition  of  A.  B.,  of ,  respectfully  shows, 

that  your  petitioner  is  the  mother  of  A.  B.,  an  infant,  who 

resides  at ,  in  the  county  of ,  and  became 

of  the  age  of years  on  the day  of , 

18—. 

That  F.  B.,  tlie  father  of  said  infant,  died  on  or  about  the 
day  of ,  18 —  [here  insert  from  (*)  to  (f), 


from  form  No.  1507,  making  necessary  changes,  and  con- 
clude as  follows]  :  and  your  petitioner  prays,  that  a  decree 
may  be  made  appointing  a  general  guardian  of  th.e  person 
(and  property)  of  said  infant,  to  serve  until  the  said  infant 
attains  tlie  age  of  fourteen  years,  and  a  successor  to  such, 
guardian  is  appointed.' 

Dated ,  18—. 

CD 

[Verification  as  in  form  No.  52.] 


No.  1512. 
Bond  of  General  Guardian  of  Infant. 

(Code  Civ.  Pro.,  §  2830.) 

As  in  form  No.  340  to  [*],  and  from  tlience  as  follows: 
That,  whereas,  by  a  decree  of  the  surrogate's  court  of  the 

county  of ,  made  on  the day  of , 

18 — ,  the  above  bounden was  appointed  the  gen- 

Y.,  458),  Hurd  v.  Hannibal  and  St.  Jo-  may  T)e  cited  to  show  cause  why  the 

seph  R.  R.  Co.  (33  IIuii,  109),  and  note  decree  sliould   not  be  made,  and  see 

1  to  form  No.  340,  as  to  bonds  exe-  notes  to  form  No.  1507,  and  the  sec 

cuted  by  trust  companies  as  sureties,  tions   of  Code   Civ.   Pro.    therein   re 

and  a.s  to  bonds   generally;  also.  ch.  ferred  lo. 

401,  Laws  of  1885,  amending  ch.  486,  The  jjroccedings  arc  the  same  as  in 

Laws  of  1881.  tlie  case  of  an  infant  over  fourteen. 

For  oath  of  guardian,  sec;  form  No.  except  that  the  surrogate  must  nomi- 

1378,  and  section  2831.  Code  Civ.  Pro.  nate,  as  well  as  appoint,  Ihe  tcnipnrary 

'  In  case  the  father  is  living,  tlic  peti-  g'uunlian.     (Code  Civ.   Pro.,  §   'J.S'J7.) 

lion  by  the  mother  must  pray  that  he  iSe<',  us  to  resideiice  of  infant,  Matter 

\'^\  ofDanielH(71  Ilini,  195.) 


1362  Forms  Relating  to 

eral  guardian  of  the  person  and  property  of  the  above 
named  [insert  name  of  infant],  an  infant  under  the  age  of 
twenty -one  years,  upon  his  executing  his  bond  to  the  said 
infant,  with  two  sufficient  sureties,  in  the  penalty  and  upon 
the  condition  therein  mentioned  : 

Now,  therefore,  the  condition  of  this  obligation  is  such, 
that  if  the  above  bounden shall,  in  all  things,  faith- 
fully discharge  the  trust  reposed  in  him  as  such  guardian, 

and  obey  all  lawful  directions  of  the  surrogate  of 

county,  touching  the  said  trust,  and  shall,  in  all  respects, 
render  a  just  and  true  account  of  all  money  and  other  prop- 
erty received  by  him,  and  of  the  application  thereof,  and  of 
his  said  guardianship,  whenever  he  is  required  so  to  do  by  a 
court  of  competent  jurisdiction,  then  this  obligation  to  be 
void,  otherwise  to  be  and  remain  in  full  force  and  virtue.' 
[Signatures  and  seals  as  in  form  No.  340.] 

Sealed  and  delivered  in  presence  of . 

[Acknowledgment  as  in  form  No.  340,  or  proof  as  in  form 
No.  538;  affidavits  and  approval  by  surrogate  as  in  form 
No.  340.]  

No.  1513 
Letters  of  Guardianship. 

(Code  Civ.  Pro.,  §  2830.) 

The  People  of  the  State  of  New  York,  to  P.  M.,  of , 

send  greeting : 

Whereas,  an  application,  in  due  form  of  law,  has  been 

made  to  our  surrogate's  court  of  the  county  of ,  to 

have  said  P.  M.  appointed  the  guardian  of  A.  B.,  of  the 

[city]  of ,  in  the  county  of .  minor  upwards 

of  \or  under]  fourteen  years  of  age  ,  and. 

Whereas,  said  P.  M.  has  agreed  and  consented  to  become 
such  guardian,  and  has  duly  executed  and  delivered  a  bond 
pursuant  to  law,  for  the  faithful  discharge  of  his  duty  as 
such  guardian,  and  we  being  satisfied  of  the  sufficiency  of 
said  bond,  and  that  said  P.  M.  is  a  good  and  reputable  per- 
son, and  is  in  every  respect  competent  to  have  the  custody 

'  See  notes  to  form  No.  1510,  and  As  to  bond  to  be  given  by  guardian 
pee  amendment  to  section  2830  of  Code  of  person,  see  Code  Civ.  Pro.,  §  2831. 
Civ.  Pro.,  by  ch.  559  of  Laws  of  1892. 


SUREOGATES'    CoURTS.  1363 

of  the  person  and  estate  of  said  minor,  do  by  these  presents 
allow,  constitute  and  appoint  you,  the  said  P.  M.,  the  gen- 
-eral  guardian  of  the  person  [and  property  j  of  said  minor 
during  his  minority  [or  until  (^hej  attains  tht^  age  of  fourteen 
years,  and  until  a  successor  to  such  guardian  shall  be  ap- 
pointed],' hereby  requiring  you,  the  said  guardian,  to  safely 
keep  the  real  and  personal  estate  of  said  minor,  which  shall 
hereafter  come  to  your  custody  and  not  suuer  any  waste, 
sale  or  destruction  of  the  same,  but  to  keep  up  and  sustain 
[his]  lands,  tenements  and  hereditaments,  by  and  with  the 
rents,  issues  and  profits  thereof,  or  with  such  other  moneys 
belonging  to  [him],  as  shall  come  to  your  possession,  and  to 
•deliver  the  same  to  [him]  when  [hej  becomes  of  full  age, 
or  to  such  other  guardian  as  may  be  hereafter  a^jpointed,  in 
as  good  order  and  condition  as  you  receive  the  same,  and 
also  to  render  a  just  and  true  account  of  all  moneys  and 
pro]3erty  received  by  you,  and  the  api-Hcation  thereof, 
and  of  your  guardianship  in  all  respects  to  any  court  Lav- 
ing cognizance  thereof,  when  thereunto  required. 

In  testimony  whereof,  etc.  [as  in  form  No.  1412,  to  end 
thereof]. 

F.  W.,  Surrogate. 

[Annex  copies  of  sections  2842  and  2843  of  Code  of  Civil 
Procedure.''] 

No.  1514. 
Petition  for  Revocation  of  Letters  of  Guardianship. 

(Code  Civ.  Pro.,  §  2832.) 

To  the  Surrogate"  s  Court  of  the  County  of . 

The  petition  of  A.  B.,  of ,  respectfully  shows,  that 

he  is  an  infant  of  the  age  of years  and  upwards, 

having  become  of  the  age  of years  on  the 

day  of ,  18—  \or  that  lip  is  a  rf^lntive,  to  wit  (state 

relationship),  or  a  friend  of  0.  T).,  an  infant  of  the  age  of, 
etc.,  as  above)]. 

That  on   the day  of .  18—    P.  M.,  of 

'  IiLsert  this  clause  in  brackets  when        «  See  last  sentence  of  section  2848, 
the  minor  is  under  fourteen  years  of    Code  Civ.  Pro. 
age.     (Code  Civ.  Pro.,  ^  "827. ^ 


1364  Forms  Relating  to 

was  appointed  the  general  guardian  of  tlie  ijerson 


[and  proi^erty]   of  your  petitioner  lor  of  said  infant]  by 

the  surrogate  of county,  in  which  county  your 

petitioner  [cr  said  infant]  then  resided  and  now  resides,  and 
that  said  P.  M.  duly  qualilied  and  entered  upon  the  dis- 
chaige  of  his  duties  as  such  guardian. 

And  your  petitioner  further  shows,  that  the  said  guardian 
is  dis(pialilied  by  law  [or  is  incompetent  to  fulfill  his  trust] 
by  reason  of  [state  reason]  [or  state  facts  bringing  the  case 
within  any  of  the  subdivisions  of  section  2832  of  the  Code 
of  Civil  Procedure]. 

Wherefore  your  petitioner  prays  for  a  decree  revoking 
the  said  letters  of  guardianship  issued  to  said  P.  M.,  and 
that  the  said  guardian  may  be  cited  to  show  cause  why 
such  a  decree  should  not  be  made.* 

Dated ,  18—. 

A.  B. 
[Verification  as  in  form  No.  62.] 


Ko.  1515. 

Citation  to  Guardian  npon  Petition  for  Revocation  of  His 

Letters. 

(Code  Civ.  Pro.,  §  2833.) 

To  P.  M.,  General  Guardian  of  A.  B.,  an  In/ant: 

Whereas,  said  A.  B.  [or  C.  D.,  the  relative  {or  friend)  of 
said  A.  B.],  has  presented  a  petition  to  the  surrogate  s  court 

of county,  praying  for  a  decree  revoking  the  letters 

of  guardianship  of  the  person  [and  property]  of  said  A.  B., 
heretofore  issued  to  you  : 

Now,  therefore,  you  are  hereby  cited  and  required  to  be 

and  appear  before  the  surrogate  of county,  at,  etc., 

on,  etc.,  to  .show  cause  why  such  a  decree  should  not  be 
made. 

In  testimony,  etc.  [conclude  as  in  form  No.  1845]. 

[L.  s.]  [Signature  as  in  form  No.  1845.] 

~«  The  words  "in  his  behalf."  at  the  section  being  to  enable  any  person  to 

beninnine  of  section  2832  of  Code  Civ.  apply  for  a  revocation   of  letters  of 

Pro    refer  to  "the  ward."  and  not  to  srnardianship,  where  no  relative  of  the 

"any  relative,"  the  intention  of  the  infant  is  willing  to  make  the  applica- 


Surrogates'  Courts.  1365 

No.  I0I6. 
Decree  Revoking  Letters  of  Guardianship. 

(Code  Civ.  Pro.,  §  2833.) 

[At,  etc.,  as  in  form  No.  1394.] 
[Title  of  proceeding.] 

A.  B.,  of  ,  an  infant  [or  C.  D,,  a  relative,  etc., 

of  A.  B.,  an  infant],   having  i)resented  to  this  court  his 

written  petition,   duly  verified  and  dated ,  18 — , 

praying  for  a  decree  revoking  the  letters  of  guardianship 

heretofore  issued  to  P.  M.,  by  the  surrogate  of 

county,  of  the  person  [and  property]  of  said  A.  B.,  and 
the  surrogate  having  inquired  into  the  matter,  and  being 
satisfied  that  there  is  probable  cause  to  believe  that  the 
allegations  of  the  said  petition  are  true,  and  having 
thereupon,  jDursuant  to  law,  issued  a  citation  to  the  said 
P.  M.  requiring  him  to  appear  before  said  surrogate,  on, 
etc.,  at,  etc.,  and  show  cause  why  such  a  decree  should  not 
be  made,  and  said  citation  having  been  returned  with  due 
proof  of  service  upon  said  P.  M.,  and  the  said  petitioner 
having  appeared  by  G.  P.,  his  attorney,  and  said  guaidian 
having  also  appeared  [by  M.  G.,  his  attorney]  on  the  return 
of  the  said  citation  [and  the  said  proceeding  having  been 
adjourned,  from  time  to  time,  to  this  day],  and  the  surro- 
gate having  heard  the  proof  and  allegations  of  the  respec- 
tive parties,  and  the  material  allegations  of  the  said  petition 
having  been  established : 

It  is  hereby  ordered  and  decreed,  and  the  said  surrogate 
doth  hereby  order  and  decree,  that  the  said  letters  of  guar- 
dianship heretofore  issued  to  said  P.  M.  by  the  [said]  sur- 
rogate be  and  they  are  hereby  revoked. 

[Add  further  provisions  as  to  accounting  by  guardian, 
and  as  to  costs,  etc.,  as  may  be  necessary.'] 

F.  W.,  Surrogate. 

tion.     (Boiling  v.  Coughlin,  5  Redf.,  Cartyl  Civ.  Pro.   R.,  334,  Ledwitb  v. 

116.)  Union  Trust   Co.  (2  Dcm.,  439).  and 

QucBre.    Whether   a   suppr^-ssion   of  notes  tf)  ff)rni  No.  1449. 

facts  is  equivalent  to  a  "fi  m.  surges-  '  See,  as  to  costs,  sections  2.')r)6-2562, 

tion  of  ii  material  fact."  under  sulid.  4  Code  Civ.  Pro. 

of  that  section.     (I.l.)  See  for  form   f)f  decree  dismissing 

See,  also,  matter  of  Kerrigan  2  [Mc-  proceedings,  form  No.  1451. 


1366  Forms  Relating  to 

No.  1517. 

Order  Suspending  Guardian  During  Pendency  of  Proceed- 
ing for  Revocation  of  His  Letters. 

(Code  Civ.  Pro.,  t^  2884.) 

[At,  etc.,  as  in  form  No.  1394. J 
[Title  of  proceeding.] 

A.  B.,  having  presented  to  this  court  his  written  petition, 

duly  verified,  dated ,  18 — ,  praying  for  a  decree 

revoking  the  letters  of  guardianship  heretofore  issued  to 

C.  D.,  of  the  [person  and]  property  of ,  and  the 

surrogate  having  inquired  into  the  matter  and  being  satis- 
fied that  there  is  reasonable  cause  to  believe  that  the  allega- 
tions of  the  said  petition  are  true,  and  having  issued  a 
citation  to  the  said  guardian  requiring  him  to  show  cause, 
before  said  surrogate,  at,  etc.,  on,  etc.,  why  such  a  decree 
should  not  be  made  : 

It  is  hereby  ordered,  that  the  said  guardian  be  wholly  [or 
state  in  what  respects]  suspended  from  the  exercise  of  his 
powers  and  authority  during  the  pendency  of  the  above 
entitled  proceeding. 

F.  W.,  Surrogate. 

No.  1518. 
Petition  by  General  Guardian  for  Revocation  of  Letters. 

(Code  Civ.  Pro.,  §2835.) 

To  the  Surrogate's  Court  of  the  County  of : 

The  petition  of  A.  B.,  of ,  respectfully  shows,  that 

heretofore,  and  on  the day  of ,  18 — ,  a  de- 
cree was  made  by  the  surrogate  of ,  appointing  your 

petitioner  the  general  guardian  of  the  person  [and  property] 

of  C.  D.,  of ,  an  infant  of  the  age  of years 

and  upwards,  and  that  letters  of  guardianship  of  said  infant 

were  thereupon,  on  the day  of ,  18 — ,  duly 

issued  to  your  petitioner,  who  duly  qualified  and  entered 
upon  the  discharge  of  his  duties  as  such  guardian. 

That  [here  set  forth  facts  upon  which  the  application  is 
founded]. 

Wherefore  your  petitioner  prays,  that  his  account,  as  such 


Subrogates'  Courts.  1367 

guardian,  may  be  judicially  settled ;  that  a  decree  may 
thereupon  be  made  revoking  his  said  letters,  and  discharg- 
ing him  accordingly,  and  that  the  said  infant  may  be  cited 
to  show  cause  why  such  a  decree  should  not  be  made. 

Dated ,  18—. 

P.  M. 

[Verification  as  in  form  No.  52.] 


No.  1519. 

Citation  upon  Application  of  General  Guardian  for  Revoca 
tiou  of  Letters. 

(Code  Civ.  Pro.,  §  2835.) 

The  People  of  the  State  of  New   Torh,  to  A.  B.,  infant 
\and  name  other  parties] : ' 

Whereas,  P.  M.,  tlie  general  guardian  of  A.  B.,  an  infant, 

has  presented  to  the  surrogate's  court  of county  his 

written  petition,  duly  verilied,  dated  • ,  praying  that 

his  account  may  be  judicially  settled,  and  that  a  decree  may 
thereupon  be  made  revoking  his  letters  and  discharging  him 
accordingly : 

Now,  therefore,  you  are  hereby  cited  and  required  to  ap- 
pear before  the  surrogate  of  the  county  of ,  at,  etc.,  on, 

etc.,  to  show  cause  why  such  a  decree  should  not  be  made. 

In  testimony,  etc.  [as  in  form  No.  1345  to  end  thereof]. 
[L.  s.]  [Signature  as  in  form  No.  1845.] 


No.  1520. 

Order  Allowing  Petitioner  to  Account  for  the  Purpose  of 
being  Discharged. 

(Code  Civ.  Pro..  §2836.) 

[At,  etc.,  as  in  form  No.  1394.] 
[Title  of  proceeding.] 
P.  M.,  of ,  the  general  guardian  of  the  person 

'  The  surrogate  may  also  require  no-  proper.     As  to  service  of  citation  upon 

tice  of  the  application  to  l)e  ;^iven  to  an  infant  under  fourteen  years  of  age, 

Buch  other  persons,  besides  the-  infant,  see  Code  Civ.  Pro.,  t^  2526. 
and   in   such   a  manner   as  he  deems 


1368  FOHMS    RKLATINa   TO 

[and  property]  of  A,  B.,  an  infant,  having  presented  to  tliis 

court  liis  written  petition,  duly  verified,  dated , 

18 — ,  praying  that  his  account  as  such  guardian  might  be 
judicially  settled,  and  that  a  decree  might  thereupon  be 
made  revoking  his  letters  and  discharging  him  accordingly, 
and  that  said  infant  might  be  cited  to  show  cause  why  such 
a  decree  should  not  be  made,  and  the  surrogate  having  enter- 
tained the  said  application  and  having  Issued  a  citation  as 
prayed  for  in  the  said  petition,  returnable  on,  etc.,  at,  etc., 
and  said  citation  having  been  leturned,  with  proof  of  due 
service  thereof  upon  the  said  infant  [and  the  other  parties 
to  whom  the  same  was  directed],  and  M.  T.  having  been  ap- 
pointed the  guardian  ad  litem  of  said  infant  and  having 
duly  appeared  in  said  j)roceeding,"  and  [state  any  further 
appearances],  and  the  surrogate  having  determined  that 
sufficient  reasons  exist  for  granting  the  prayer  of  said  peti- 
tion, and  that  the  interests  of  said  infant  will  not  be  preju- 
dicial by  the  resignation  of  said  guardian : 

It  is  hereby,  on  motion  of ,  counsel  for  said  peti- 
tioner, after  hearing,  etc.,  ordered  accordingly,  and  that  the 
said  petitioner  be  allowed  to  account  for  the  purpose  of 
being  discharged. 

F.  AV.,  Surrogate. 

No.  1521. 

Decree  Revoking  Letters  of  Guardianship  and  Discharging 

Guardian. 

(Code  Civ.  Pro.,  §  2836.) 

[At,  etc.,  as  in  form  No.  1394.] 

[Title  of  proceeding.] 

An  order  having  been  heretofore  made  in  the  above  enti- 
tled matter,  pursuant  to  law,  on  the day  of , 

18—,  by  the  surrogate  of county,  that  P.  M.,  the 

general  guardian  of  A.  B.,  an  infant,  be  allowed  to  account 
for  the  purpose  of  being  discharged  from  his  said  guardian- 
ship, and  the  said  P.  M.  having  fully  accounted  as  such 
general  guardian,  and  having  paid  all  money  which  was 
found  to  be  due  from  him  to  such  infant,  and  delivered  all 
books, papers  and  other  property  of  said  infant  in  his  hands, 


Surrogates'  Courts.  1369 

into  this  court  \or  name  other  manner  of  payment  and  de- 
livery], as  directed  by  said  surrogate : 

It  is  hereby  ordered  and  decreed,  and  the  said  surrogate 

doth  order  and  decree,  on  motion  of ,  counsel  for 

the  said  petitioner,  after  hearing,  etc.,  that  the  letters  of 
general  guardianshii^  of  the  person  [and  projDerty]  of  said 

A.  B,,  heretofore  issued  on  the day  of , 

18 — ,  to  said  P.  M.  b}'  the  surrogate  of county,  be 

and  the  same  are  hereby  revoked,  and  that  said  P.  M.  be 
discharged  accordingly  as  such  guardian. 

[Insert  any  provisions  as  to  costs  of  the  proceeding,  as  to 
which,  see  Code  of  Civil  Proceedure,  §§  2556-2502.'] 


No.  1522. 
Petition  for  Ancillary  Letters  of  Giiardiaushlpr 

(Code  Civ.  Pro.,  §2838.) 

To  the  Surrogate' s  Court  of  the  County  of ; 

The  petition  of  A.  B.,  of ,   respectfully  shows^ 

that  heretofore  and  on  the day  of ,  18 — , 

your  petitioner  was  appointed  by  the Court,  a 

court  of  competent  jurisdiction  within  the  State  \or  Terri- 
tory] of ,  in  the  United  States,  the  general  guardian 

of  C.  D.,  an  infant,  who  resides  at ,  in  the  said  State 

[etc.],  and  that  yonr  petitioner  has  given  security  within 
the  said  State  [etc.]  in  at  least  twice  the  value  of  the  per- 
sonal property,  and  of  the  rents  and  profits  of  the  real  prop- 
erty of  the  said  infant,  and  that  your  petitioner  has  duly 
qualified  as  such  guardian  and  has  entered  upon  the  dis- 
charge of  his  duties  as  such. 

And  your  petitioner  further  shows,  thnt  the  snid  infant  is 
entitled  to  property  within  the  Staff'  of  Npw  York,  to  wit: 
of,  etc.  [briefly  describing  property],  [part  of]  which  is  situ- 
ated in  the  said  county  of 

\0r  state  that  the  infanfis  enfitlpd  to  maintain  an  artion 

in  a  court  of  this  State  against for  (stating  o})j<'ct 

of  the  action).] 


See  a-s  to  jiulicml  settloment  of  llie     liahle  until   snrh   -fnflicial    sottlcmcnt, 
accounts  of  the  /ruardiiin  after  such     Code  Civ.  Pro.,  §  28:i7. 
discharge,  and  that  his  sureties  remain 

172 


1370  Forms  Relating  to 

That  no  debts  are  due  from  the  estate  of  said  infant  to 
residents  of  this  State  [or  if  any  creditors,  state  same]. 

Wherefore  your  petitioner  prays,  that  ancilkiry  letters  of 
guardianship  may  be  issued  to  him  accordingly,  pursuant 
to  article  lirst  of  title  seventh  of  chapter  eighteenth  of  the 
•Code  of  Civil  Procedure  of  the  State  of  New  York* 

Dated ,  18 — . 

A.  B. 

[Verification  as  in  form  No.  52.1 

[Annex  exemplified  copies  of  the  records  and  other  papers 
showing  that  the  jDetitioner  has  been  so  ai)pointed  and  has 
given  the  required  security,  authe«nticated  as  presciibed  in 
article  seventh  of  title  one  of  chapter  eighteenth  of  the  Code 
of  Civil  Procedure  ;  see  section  2695  (id.).] 


No.  1523. 
Decree  Granting  Ancillary  Letters  of  Guardianship. 

(Code  Civ.  Pro.,  §2839.) 

[At,  etc.,  as  in  form  No.  1394.] 

[Title  of  proceeding.] 

A.  B.,  the  general  guardian  of  C.  D.,  an  infant  residing 
without  the  State  of  New  York,  and  within  the  State  [or 
Territory]  of  ,  in  the  United  States,  having  pre- 
sented to  this  court  his  written  petition,  duly  verified,  dated 
,  18 — ,  by  which  it  appears  that  said  C.  D  is  enti- 
tled to  property  situated  within  the  county  of ,  in 

this  State  [or  state  otherwise  according  to  the  fact],  and  that 

said  A.  B.  has  been  duly  appointed  by  the court, 

a  court  of  competent  jurisdiction  within  the  said  State  [or 

Territory]  of ,  and  has  there  given  security  in  at 

least  twice  the  value  of  the  personal  property  and  of  the 
rents  and  profits  of  the  real  property  of  the  said  infant,  and 
praying  for  ancillary  letters  of  guardianship  accordingly ; 
and  the  said  petition  being  accompanied  with  exemplified 
copies  of  the  records  and  other  papers  duly  authenticated, 

1  See  Griffin  v.  Sarsfield  (2Dem.,4),  See,  also,  provisions   of  subd.  2   of 

In  Matter  of  Fitch  (3  Redf.,  457),  as  to  §  2838,   Code  Civ.  Pro  ,  added  to  that 

this  proceeding.  section   by   ch    263  of  Laws  of  1889, 

As  to  proceedings  upon  petition,  see  and  amended  by  ch.  5/6  of  ^aws  ot 

Code  Civ    Pro.,  ^2839;  as  to  effect  of  1892,  relating   to   application,  by  the 

ancillary  letters,  see  section  2840,  id  ;  general  guardian  of  an  infant  residing 

64  How    515  without  the  State  and  within  a  foreign 


Surrogates'  Courts.  1371 

showing  that  he  has  been  so  appointed  and  has  given  the 
security  required  by  section  2838  of  the  Code  of  Civil  Pro- 
cedure, and  the  surrogate  being  satisfied  upon  the  papers 
presented  that  the  case  is  within  said  section  2838,  and  that 
it  will  be  for  the  interest  of  said  infant  that  ancillary  letters 
of  guardianship  should  be  issued  to  the  said  23etitioner  : 
Now,  upon  motion  of  F.  G.,  counsel  for  said  petitioner: 
It  is  hereby  ordered  and  decreed,  that  the  exemplitied 
copies  of  the  letters  of  guardianship  accompanying  said 
petition  be  recorded,  and  that  ancilhiry  letters  of  guardian- 
ship of  the  said  infant's  property  be  and  they  are  hereby 
granted  to  the  said  A.  B.  [upon  payment  of  the  debts  due- 
from  said  ward  to  residents  of  this  State,  and  upon  said 
A.  B.  producing  to  the  surrogate  proper  vouchers  for  such 
payments].' 

F.  W.,  Surrogate^ 

Article  Second. 

FORMS  RELATING  TO  THE  SUPERVISION  AND  CONTROL  OF  A 
GENERAL  GUARDIAN,  AND  SETTLEMENT  OF  HIS  ACCOUNTS. 

(Code  Civ.  Pro.,  Cli.  18,  Tit.  7,  Art.  2.) 

No,  1524.     Annual  inventory  and  account  of  guardian. 

1525.  Petition  for  judicial  .settlement  of  guardian's  account. 

1526.  Citation  to  guardian  for  judicial  settlement  of  his  account. 


No.  1524. 
Annual  Inventory  and  Account  of  Gnardian. 

(Code  Civ.  Pro.,  ^2842.) 

Same  as  form  No.  1245." 

country,  entitled  to  personal  property  (Code   Civ.  Pro.,  §   2839.)     See,  also, 

within   the   State,  or   to    niaintaiti  ati  amendment  to  that  section   by  chap, 

action   or  special  proceedinf;-,  in  atiy  576  of  Law.s  of   1892,    by  which    the 

court  thereof,  respecting' such  personal  words     "admitting'    the    exemj)lified 

property,  for  ancillary  letters  of  g-iiard-  copies  of  the  foreign   letters  to  be  re- 

ianship  on  the  personal  estate  of  such  corded  and  "  contained  in  that  section 

infant.  before  sutrh  amendment  were  omitted. 

'  The  decree  may  l)e  made  without  See,  also,  notes   to   last   form,  No. 

a  citation,  or  the  surrogate  may  cite  1522. 

such  persons  as  he  thinks  ])r(ijier,  to  "  The  jn-oiieeding's  upon  the  account 

show  cause  why  the  i)rayer  of  the  j>e-  arc  sul)staiitially  the  same  as  in  the 

tition  should  not  Ije  granted.     But  be-  case  of  a  iiiriatic.     See  form  No.  1246. 

fr)re    the  ancillary  letters  ai-e  insiied,  and  see  notes  to  forms  Nos.  1245  and 

the  surrogate    must   irujuire  whether  124f),  and  stMj  Matter  of  Cami)  ('.M  Hun, 

any   de>)ls   are  due    from    the    ward's  204),    Matter    of  Pluml)    (i;{5    N.    Y., 

estate  to  residents  of  the  Ktatfs  and  if  66 1). 
80  he  must   re(inir<!   jtaynieiit  thereof. 


1372  Forms  Relatusci  to 

No.  1525. 
Petition  for  Judicial  Settlement  of  Guardian's  Account. 

(Code  Civ.  Pro.,  i^  2847.) 

To  tlie  Siorrogate'  s  Court  of  the  County  of ; 

The  petition  of  C.  D.,  of ,  respectfully  shows,  that 

heretofore,  and  on  the day  of ,  18—,  A.  B., 

of ,  was  appointed  the  general  guardian  of  the  [per- 
son and]  property  of  your  petitioner  by  the  surrogate  of 
county. 

And  your  petitioner  furtlier  shows,  that  on  the 


.day  of ,  18 — ,  he  attained  his  majority,  and  became 

pf  the  age  of  twenty-one  years. 

And  your  petitioner  prays,  that  a  judicial  settlement  may 
be  had  of  the  account  of  said  A.  B.  as  such  general  guard- 
ian, and  that  he  may  be  cited  to  attend  the  settlement 
thereof.' 

Dated ,  18—. 

C.  D. 

[Verification  as  in  form  No.  52.] 


No.  1526. 

.Citation  to  Guardian  for  Judicial  Settlement  of  His  Ac- 
count. 

(Code  Civ.  Pro.,  §2850.) 

The  People  of  the  State  of  New  York^  to  A.  B.,  General 
Guardian  of  the  Person  and  Property  ofQ.  D.: 

Whereas,  C.  D.  has  presented  to  the  surrogate's  court  of 

the  county  of his  written  petition,  duly  verified, 

praying  for  the  judicial  settlement  of  your  account  as  such 
guardian : 

Now,  therefore,  you  are  hereby  cited  and  required  to  be 

and  appear  before  the  surrogate  of county,  at,  etc., 

on,  etc.,  to  attend  the  judicial  settlement  of  said  account. 

In  testimony,  etc.  [as  in  form  No.  1345,  to  end  thereof].' 
[L.  s.]  [Signature  as  in  form  No.  1346.] 

■  As  to  who,  besides  the  ward,  may     aubds.    2   and   3,    and    §    2849,    cited 
petition,  see  Code  Ciy.  Pro.,    §  2847,     below  ;  see,  also,  id.,  §  2848,  as  to  peti- 


Surrogates'  Courts. 


1373 


Article  Third, 

FORMS    RELATING  TO   GUARDIANS    APPOINTED  BY  WILL  OR 

DEED. 

(Code  Civ.  Pro.,  Ch.  18,  Tit.  7,  Art.  3.) 

No.  153?.     Petition  for  security  to  be  given  by  guardian  appointed  by  deed  or 
wiU. 


No.  1527. 

Petition  for  Decree  Directing   Security  to  be  Given  by 
Guardian  Appointed  by  Deed  or  Will. 

(Code  Civ.  Pro.,  §  2853.) 

See  form  No.  1410  for  allegations  of  this  petition. 


tion  for  accounting  by  general  guardian 
of  the  person  ;  see,  also,  Welch  v.  Gal- 
lagher (2  Dam.,  40),  Smil-h  v.  Lusk  (2 
id.,  595),  and  amendment  to  section 
2847  by  adding  subdivision  4  thereto, 
providing  that  the  application  may  be 
made  by  a  sui-ety  in  the  official  bond 
of  a  guardian  whose  letters  have  been 
revoked  ;  or  by  the  legal  representa- 
tives of  such  surety.  The  citation 
under  that  subdivision  must  be  di- 
rected to  both  the  guardian  and  the 
ward.     (Laws  of  1892,  chap.  62.) 

A  guardian  may  present  to  the  sur- 
rogate's court  a  written  petition  duly 
verified,  praying  for  a  judicial  settle- 
ment of  his  account  and  a  discharge 
from  his  duties  and  liabilities,  in  any 
case   where   a   petition  for  a  judicial 


settlement  of  his  account  may  be  pre- 
sented by  any  other  person"  as  pre- 
scribed in  either  of  the  last  two  sec- 
tions. The  petition  must  pi'ay  that 
the  person  who  might  have  so  pre- 
sented a  i^etition,  and  also  the  .lureties 
in  his  official  bond  of  such  guardian  or 
the  legal  representatives  of  such  surety 
may  be  cited  to  attend  the  settlement. 
(Code  Civ.  Pro.,  §  2849,  as  amended 
by  chap.  304  of  Laws  of  1893,  by  in- 
serting words  in  italics,  such  amend- 
ment taking  effect  September  1,  1893.) 

"  For  proceedings  upon  the  return 
of  the  citation,  see  section  2S50,  Code 
Civ.  Pro.,  and  forms  Noa.  1476,  1481. 

See,  also,  note  1  to  last  form  No. 
1526,  as  to  direction  of  citation  under 
subdivision  4  of  section  2847,  icL 


1374  Forms  Relating  to 


CHAPTER  XIX. 

FORMS  RELATING  TO  COURTS   OF  JUSTICES   OF  THE  PEACE. 
AND  PROCEEDINGS  THERELN. 

TITLE         I.     Forms  relating  to  jurisdiction  and  general  powers. 

TITLE  II.  Forms  relating  to  commencement  of  action  ;  appearance  of 
parties  ;  provisional  remedies. 

TITLE  III.  Forms  relating  to  pleadings,  including  counterclaim,  and  pro- 
ceedings upon  answer  of  title. 

TITLE  IV.  Forms  relating  to  proceedings  between  the  joinder  of  issue  and 
the  trial. 

TITLE        V.     Forms  relating  to  trial  and  its  incidents. 

TITLE      VI.     Forms  relating  to  judgment  and  docketing  the  same. 

TITLE    VII.     Forms  relating  to  executions. 

TITLE  Vlll.     Forms  relating  to  appeals. 

TITLE  IX.  Forms  relating  to  action  or  special  proceeding  relating  to  an 
animal  slraj'ing  upon  the  highway. 

TITLE       X.     Forms  relating  to  miscellaneous  provisions. 

TITLE  I. 

FORMS  RELATING  TO   JURISDICTION  AND  GENERAL  POWERS, 

(Code  Civ.  Pro.,  Ch.  18,  Tit.  1.) 

No.  1528.     Warrant  of  arrest  for  criminal  contempt. 

1529.  Record  of  conviction  for  criminal  contempt. 

1530.  Warrant  of  commitment  for  criminal  contempt. 


No.  1528. 
Warrant  of  Arrest  for  Criminal  Contempt. 

(Code  Civ.  Pro.,  §  2872.) 

County, 


ss 
Town  [or  City]  of 

The  People  of  tlie  State  of  New  YorJc,  to  any  Constable  of 
tlie  said  County,  greeting  : 
We  command  you  to  arrest  C.  I).,  and  bring  him  before 
A.  F.,  Esq.,  one  of  the  justices  of  the  peace  of  the  said 
county,  at  his  [dwelling-house]  in  the  said  town,  to  show 
cause  why  he,  the  said  CD.,  should  not  be  convicted  of  a 
criminal  contempt,  alleged  to  have  been  committed  on  the 


Justices'  Courts.  1375 

day  of ,  18 — ,  before  the  said  justice,  while 

engaged  as  a  justice  of  the  peace  in  judicial  proceedings. 
Witness   our   said   justice,   at   the   town   aforesaid,   this 

day  of ,  18—.' 

A.  F.,  Justice. 

No.  1529. 
Record  of  Conviction  for  Criminal  Contempt. 

(Code  Civ.  Pro.,  §  2873.) 

County,  ss.  : 


Whereas,  on  the day  of ,  in  the  year  18 — , 

while  the  undersigned,  one  of  the  justices  of  the  peace  of 

the  town  of ,  in  the  said  county,  was  engaged  in 

the  trial  of  [or  in  the  rendering  of  judgment  in]  an  action 
between  J.  J.,  plaintiff,  and  R.  B.,  defendant,  in  said  town, 
according  to  the  statute  in  such  case  made  and  provided, 
C.  D.,  of  the  [town]  of ,  in  [said]  county,  did  con- 
temptuously, insolently  and  in  a  disorderly  manner,  so  be- 
have and  conduct  himself  towards  the  undersigned,  as  to 
interrupt  the  said  proceedings,  and  to  impair  the  respect 
due  to  the  authority  of  the  undersigned  by  declaring,  in  a 
loud  voice,  that  the  said  defendant,  R,  B.,  could  not  have 
justice  done  him  in  a  court  held  by  the  undersigned  [or  that 
the  undersigned  lied  {or  on  being  admonished  to  take  off 
his  hat,  that  he  did  not  value  what  the  undersigned  could 
do  ;  or  that  the  undersigned  was  forsworn,  or  a  fool,  or 
that  if  the  defendant  could  not  have  justice  here,  he  could 
get  it  elsewhere,  or  the  like)]. 

If  the  offense  is  within  subdivision  two  of  section  2870  of 
the  Code  of  Civil  Procedure,  then,  after  word  "county," 
above,  say  as  follows :  was  guilty  of  making  a  great  noise 
and  disturbance,  tending  to,  and  M-hich  did,  interrupt  the 
said  proceedings  by  loud  and  boisfei'ous  conversation  with 
divers  other  persons  in  the  presence  and  liearing  of  tiie  un- 
dersigned, while  so  engaged  as  aforesaid,  and,  on  being 
requested  to  desist  therefrom,  refused  so  to  do. 

If  the  contempt  was  under  the  third  subdivison  of  that 
section,  then,  after  the  said  word  "conntv,"  sav  as  follows: 


'  See  notes  to  next  form  No.  1629. 


1376  Forms  Relating  to 

willfully  resisted  in  tlie  presence  of  the  undersigned,  then 
sitting  as  justice  in  said  trial,  the  execution  of  a  lawful 
mandate  issued  by  the  undersigned  for  the  commitment  of 
F.  N.,  for  a  contempt  of  court,  for  refusing  to  be  sworn  as 
a  witness  [or  if  any  other  mandate,  describing  it]  ;  and, 

Whereas,  the  undersigned  thereupon  issued  his  warrant, 
directed  generally,  to  any  constable  of  the  said  county,  re- 
quiring the  said  constable  to  bring  the  said  offender  before 
him  ;  and. 

Whereas,  the  said  C.  D.  was  brought  before  the  under- 
signed, pursuant  to  the  said  warrant,  and  an  opportunity 
was  given  him  to  be  heard  in  his  defense  ;  and. 

Whereas,  the  said  C.  D.  did  not  show  any  cause  or  make 
any  defense  against  the  said  charge  : 

Be  it,  therefore,  remembered,  that  the  said  C.  D,  is  ad- 
judged to  be  guilty,  and  is  convicted  of  the  criminal  con- 
tempt aforesaid,  before  the  undersigned,  and  adjudged  by 
the  undersigned  to  pay  a  fine  of  [twenty-five]  dollars  [and 
be  imprisoned  in  the  common  jail  of  said  county  for  the 
term  of  (five)  days,  and  until  such  fine  be  paid,  or  he  be 
discharged  from  imprisonment  according  to  law].* 

Dated  the day  of ,  18—. 

A.  F.,  Justice. 

No.  1530. 
Warrant  of  Commitmeut  for  a  Criminal  Contempt. 

(Code  Civ.  Pro.,  §2874.) 

County, 

'  ss. 


-,l 


Town  [or  City]  of 

The  People  of  the  State  of  New  York,  to  any  Constable  of 

the  County  of ,  and  to  the  Sheriff  of  the  Couuty 

of : 

Whereas,  C.  D.,  on  the day  of  ,  18— 

[here  set  forth  the  particular  circumstances  of  the  offense, 
as  to  which  see  record  of  conviction,  next  form]  ;  and. 
Whereas,  the  said  justice  thereupon  issued  his  warrant, 

>  See  notes  to  form  No.  1530.  after  the  conviction.     (Code  Civ.  Pro., 

This  record  must  be  filed  in  the    §  2873.) 
county  clerk's  office,  within  ten  days 


Justices'  Couets.  1377 

directed,  generally,  to  any  constable  of  the  said  county,  re- 
quiring the  said  constable  to  bring  the  said  offender  before 
him ;  and, 

Whereas,  the  said  C.  D.  was  brought  before  the  said  jus- 
tice, pursuant  to  said  warrant,  and  an  ox^portunity  was 
^ii'en  them  to  be  heard  in  his  defense  ;  and. 

Whereas,  the  said  C.  D.  was  thereupon  adjudged  to  be 
guiltj^,  and  was  convicted  of  the  said  criminal  contempt  by 

the  said  justice,  and,  also,  adjudged  to  pay  a  fine  of 

dollars  [and  to  be  imprisoned  in  the  count}^  jail  of  said 

county  for  the  term  of days,  and  until  such  tine 

be  paid,  or  he  be  discharged  from  imprisonment  according 
to  law].' 

Now,  therefore,  you,  the  said  constable,  are  hereby  com- 
manded forthwith  to  convey  and  deliver  the  said  C,  D.  into 

the  custody  of  the  said  sheriff  of county  ;  and  you, 

the  said  sheriff,  ai'e  hereby  .commanded  to  receive  the  said 
C.  D.  into  your  custody  in  the  jail  of  said  county,  and  him 
there  closely  confine,  by  virtue  of  this  warrant,  during  the 

said  term  of days  [and  until  he  pays  said  line],  or 

until  he  is  duly  discharged  according  to  law. 

Witness  my  hand  at  the  town  of ,  in  the  county 

of J  on  this day  of ,  18 — .' 

A,  F.,  Justice  of  the  PeacB, 


TITLE  II. 
Article  First. 

FORMS  RELATING  TO  COMMENCEMENT  OF  ACTION. 

(Code  Civ.  Pro.,  Ch.  19,  Tit.  2,  Art.  1.) 

No.  1531.     Summons  issued  by  a  justice  of  the  peace. 
15:^2.     Return  of  service  of  justice's  summons. 
1533.     Return  by  constable  of  failure  to  make  service  of  summons. 


'  See  as  to  punishment  for  a  criminal  contempt  In  a  iusticcs  court,  sec  Code 

contempt  by  justice,  Code  Civ.  Pro..  Civ.  Pro.,'?  2870.     See.  also.  Ruthcr- 

i5  2871;  and  sec  People  ex  rel.Scblosscr  ford   v.    Ilolmca   (66   N.  Y.,  868;   21 

V.  Porter  (25  Hun,  601).  as  to  ))rocecd-  Week.  Diir.,  l.SO). 

inirs  betore  justice,  cited  in  note  1   to  Sec,  also. 'as  to  ircnen,!  requisites  of 

form  >io.    1.  and  see  that  note  as  to  mandate  of  liisticc  of  the  peace.  Code 

criminal  contempts  penerally.  Civ.  Pro.,  (JS  ^3,  8185. 

*  As  to  what  constitutes  a  oriminal 

i7;i 


1378  Forms  Kelating  to 

No.  1531. 
Suniiuoiis  Issued  by  a  Justice  of  the  Peace. 

(Code  Civ.  Pro.,  §  2877.) 

Town  [or  City]  of 


County^  \  ^^' 

The  People  of  the  State  of  New  Tork^  to  any  Constable  of 
said  Covnty^  greeting : 

We  command  you  to  summon  R.  R.  to  appear  before  R. 

C.,  a  justice  of  the  peace  of  said  county,  on  the 

day  of ,  18 —  [or  instant],  at o'clock  in 

the noon,  at  his  office  in  the  [town]  of [or 

immediately  upon  the  arrest  of  the  said  R.  R.,  within  twelve 
days  after  this  summons  is  issued],'  to  answer  the  complaint 
of  F.  C,  plaintiff,  in  a  civil  action. 

Dated ,  18—. 

R.  C,  Justice  of  the  Peace. 


No.  1532. 
Return  of  Service  of  Justice's  Summons. 

(Code  Civ.  Pro.,  §  2885.) 

County,  ss.: 


I  [F.  P.,  a  constable  of  the  county  of ],"  hereby 

certify,  [*]  that  I  served  the  within  summons  on  R.  R.,  the 
defendant  therein  named,  on  the day  of , 

'This  clause  in  brackets  is  to  be  in-  on  contract  for  the  recovery  of  money 

serted  instead  of  the  time  when  the  only,   chapter  414,  Laws   of  1881   as 

summons  is  accompanied  with  an  order  amended  by  ch.  472  of  Laws  of  1889; 

of  ari-est.     In  all  other  cases  the  time  and  see  section  3156,  Code  Civ.  Pro., 

is  to  be  not  less  than  six  nor  more  than  and  Hayes  v.  Maytham  (20  Week.  Dig., 

twelve  days  after  the  day  when  it  was  337),   Warring-  v.    Keeler    (11   Misc., 

issued.     (Cede  Civ.  Pro.,  §  2877.)  451),  as  to  written  authority  to  person 

See,  also,  as   to   indorsement  upon  other  than  the  officer  to  serve, 

summons  in  certain  cases,  section  1897  As   to  designation  of  defendant  in 

of  Code  Civ.  Pro.,  and  form  No.  891  summons  when  the  plaintiff  is  ignorant 

and  note  to  that  form.  of  his  name,  see  Code  Civ.  Pro.,  §  2884. 

See,  also,  llitchman   v.  Baxter  (20  See,   also,   generally   as   to   summons 

Week.  Dig.,  304  ;  S.  C,  34  Hun.  271),  issued  by  justice  of  the  peace,  Hana- 

United  States  v.  Rose  (2  Civ.  Pro.  R.  man  v.  Mnckle  (20  Civ.  Pio.  R.,  296), 

[McCarty],  264),  Kee   v.  McSweeney  Griffin  v.  Jackson  (36  State  Rep.,  110), 

(66  How  Pr.,  447).  Lindsay  v.  Tansley  (44  id.,  653). 

See  also,  as  to  issuing  verified  com-  ^  This   clause  in   brackets  may  be, 

plaint  with  summons,  in  actions  arising  and  usually  is,  omitted. 


Justices'  Courts.  1379 


"> 


18—,  at  the  [city]  of ,  in  the  said  county  of  — 

by  delivering  a  copy  thereof  to  [the  said  defendant].* 

Dated ,  18—. 

F.  P.,  Constable. 

No.  1533. 

Return  hy  Constable  of  Failure  to  Make  Service  of  Sum- 
mons. 

(Code  Civ.  Pro.,  §  2885.) 

As  in  form  No.  1532  to  [*],  and  from  thence  as  follows : 
That  the  within  summons  was  not  served  upon  the  defend- 
ant, R.  E,.,  for  the  reason  that,  etc.  [state  reason  why  ser- 
vice was  not  made]. 

Dated ,  18—. 

F.  W.,  Constable, 

Article  Second, 
forms  relating  to  appearance  of  parties. 

(Code  Civ.  Pro.,  Ch.  19,  Tit.  2,  Art.  2.) 

No.  1534.     Consent  of  person  to  act  as  guardian  ad  litem  of  infant  plaintiff. 

1535.  Consent  of  person  to  be  appointed  guardian  ad  litem  of  infant  de- 

fendant. 

1536.  Offer  by  defendant  to  allow  judgment. 

1537.  Acceptance  of  defendant's  offer  by  plaintiff. 


No.  1534. 


Consent  of  Person  to  Act  as  Guardian  ad  litem  of  Infant 

Plaintiff. 

(Code  Civ.  Pro.,  §  2887.) 

County,  ss.  : 


I  hereby  consent  to  be  the  guardian  ad  litem  of  C.  D.,  an 
infant,  in  an  action  against  R.  R. 

Dated ,  18—. 

J.  S. 

The  said  J.  S.  is  accordingly  appointed  on  this 


'  See,   also,    provisions  of  sections  forms  Nos.  84-88  in  conncclion  with 

2879-2882,  as  to  service  upon  corpora-  those  sections;  and  as  to  validity  of  re- 

tions  generally,  upon  railroad  corpora-  turn  inidcr  statutes  licfore  Code;  Civ. 

lions  and  upon  express  companies,  and  Pro.,  Sperry  v.  Reynolds  (05  N.  Y., 


1380  Forms  Relatii^g  to 

day  of ,  18 — ,  upon  the  nomination  of  the  said  C.  Dr 

[or  of  A.  M.  the  general  guardian  of  said  C.  D.]. 

R.  C,  Justice  of  the  Peaoe. 


No.  1535. 


Consent  of  Person  to  be  Appointed  Guardian  ad  litem  for 
Infant  Defendant. 

(Code  Civ.  Pro.,  §  2888.) 

JUSTICES  COURT. 


Richard  Roe 

agst. 

James  Jackson. 


Before  Ransom  Oook,  Ekq., 

Justice  of  tlie  Peace. 


County,  ss.. 


I  consent  to  be  the  guardian  ad  litem  of  James  Jackson, 

an  infant,  the  defendant  in  the  above  entitled  action. 

Dated ,  18—. 

DANIEL  FERM. 

The  said  Daniel  Ferm  is  accordingly  appointed  gnardian 
ad  litem  of  the  said  defendant,  upon  the  nomination  of  the 
defendant  [or  on  the  aj^plication  of  the  plaintiff,  the  said 
defendant  having  failed  to  appear  upon  the  return  of  the 
summons,  or  having  neglected  {or  refused)  to  nominate  any 
person  for  such  guardian]. 

Dated ,  18—. 

RANSOM  COOK, 

Justice  of  the  Peace* 


No.  1536. 
Oifer  by  Defendant  to  Allow  Judgment. 

(Code  Civ.  Pro.,  ^2893.) 

[Title  of  cause.] 

Sir— Take  notice,  that  the  defendant  [C.  D.]  above  named 
hereby  offers,  pursuant  to  statute,  to  allow  judgment  to  be 

179  ;  rev'g  S.  C,  5  Lans.,  407),  Snyder  served  the  certificate  must,  under  the 
V.  Schram  (59  How.  Pr.,  404).  In  an  act,  ch.  414,  of  Laws  of  1S81,  show  that 
action   where  a  verified   complaint  is     the  copies  of  papers  delivered  to  the 


Forms  Relating  to 


1380a 


defendant,  were  left  with  him  (McMul- 
lin  V.  Mackey,  6  N.Y.  Supp.,  885),  see, 
also,  Wheeler  &  Wilson  Mfg.  Co.  v. 
McLaughlin  (28  State  Rep.,  372),  Mc- 
Gill  V.  Weill  (10  N.  Y.  Supp.,  246), 
Guyon  v.  Rooney  (28  State  Rep.,  624), 
Brown  v.  Niagara  Machine  Co.  (27  id., 
70),  Syracuse  Moulding  Co.  v.  Squires 
(39  id.,  824;  61  Hun,  48),  Boynton  v. 
Electric  Light  Co.  (5  Misc.,  118),  Fort 
V.  Mulligan  (49  State  R.,  307),  Nichols 
V.  Place  (1  Misc.,  497). 

In  cases  under  section  1897  of  Code 
Civ.  Pro.,  the  return  should  show  that 
the  copy  served  was  indorsed,  as  re- 
quired by  that  section. 

See,  also,  Pearce  v.  Nester  (50  Hun, 
546)  as  to  effect  of  service  by  deliver- 
ing original  summons  instead  of  copy; 
and  see,  also,  as  to  appearance.  Stev- 
ens v.  Stevens  (17  Week.  Dig.,  481), 
Rickey  v.  Christie  (40  Hun,  278),  Vil- 
lage of  Suspension  Bridge  v.  Bedford 


(10  State  Rep.,  850),  Peck  v.  Hayes 
(14  Civ.  Pro.  R.,  110),  Crown  Point 
Iron  Co.  v.  Fitzgerald  (14  State  Rep., 
427),  Shehan  v.  Johnston  (20  Week. 
Dig.,  157),  McCarty  v.  Crowley  (5  N. 
Y.  Supp.,  675),  Thomas  v.  Keeler  (52 
Hun,  318),  Hoyt  v.  See  (16  Week.  Dig., 
90),  Dunn  v.  O'Keefe  (31  State  Rep., 
311),  Rogers  v.  Edmonds  (28  id.,  749), 
Syracuse  Moulding  Co.  v.  Squires  (21 
Civ.  Pro.  R  ,  58 ;  61  Hun,  48,  rev'g  8. 
C,  13  N.  Y.  Supp.,  547),  Hannaman 
v.  Muckle  (20  id.,  296),  Todd  v.  Dor- 
emus  (60  Hun,  385),  Duel  v.  Sykes 
(59  id.,  117),  Griffin  v.  Jackson  (36  State 
Rep.,  110),  Boynton  v.  Keeseville  Elec- 
tric Light,  etc.,  Co.  (5  Misc  ,  118), 
Thompson  v.  Sheridan  (80  Hun,  33), 
Ramsay  v.  Robinson  (86  id.,  511), 
Handshaw  v.  Arthur  (89  id.,  179), 
Harley  v.  Fitzgerald  (84  id.,  305), 
Beardsley  v.  Pope  (88  id.,  560  rev'g 
S.  C,  11  Misc.,  117). 


Justices"  Cuukts.  1381 

taken  against  liim  in  the  above  entitled  action  for  the  sum 

of dollars,  with  costs.' 

Dated ,  18—. 

C.  D.,  Defendant. 

No.  1537. 
Acceptance  of  Defeudaut's  Offer  by  PlaintiflF. 

(Code  Civ.  Pro.,  §  2892.) 

[Title  of  cause.] 

Sir — Take  notice,  that  the  plaintiff  above  named  hereby 
accepts  the  offer  of  the  defendant  [C.  D.]  in  the  above  en- 
titled action,  dated ,  18 — ,  to  allow  judgment  to  be 

taken  against  him  in  said  action  for  the  sum  of 

dollars,  with  costs." 

Dated ,  18—. 

A.  B.,  Plaintiff, 


Article  Third. 

FORMS  RELATING  TO  ORDER  OF  ARREST, 
(Code  Civ.  Pro.,  Ch.  19,  Tit.  2,  Art.  3.) 

1538.  Affidavit  to  obtain  order  of  arrest. 

1539.  Order  of  arrest  granted  by  justice  of  the  peace. 

1540.  Undertaking  upon  application  tor  order  of  arrest. 

1541.  Return  of  constable  to  order. 

1542.  Notice  of  application  for  discharge  from  arrest. 

1543.  Order  discharging  defendant  from  arrest. 

1544.  Affidavit  to  procure  discharge  by  justice  of  the  peace  of  privileged 

person  from  arrest. 

1545.  Order  of  justice  of  the  peace  discharging  privileged  person  from 

arrest. 


No.  1538. 
Affidavit  to  Obtain  Order  of  Arrest. 

(Code  Civ.  Pro.,  §S  2894-2896.) 

[Title  of  cause  as  in  form.  No.  1535.]. 

State  of  New  York.  ) 
County^       I  ' 


R_  R^^  of ,  being  duly  sworn,  says  [that  he  is  the 


'  See,  also,  form  No.  310,  and  notcB,     346),  Mock     v.  Raile    (52    Ilun.   199), 
and  see  Fowler  v.  llaynes  ('Jl  N.  Y.,     Shwi-man  v.  BhiHl.-r  (U  Mjhc,  2U3). 

•  Sen,  al.so,  form  No.  311. 


1382  Forms  Relatixg  to 

plaintiff  {or  plaintiff's  attorney)  in  the  above  entitled  ac- 
tion].' 

That  the  defendant  in  this  action  resides  at ,  in 

the  county  of ,  and  is  not  a  resident  of  the  county 

of [or  that  the  plaintiff  in  said  action  resides  in  the 

county  of ,  and  is  not  a  resident  of  the  county  of 

;  or  that  all  the  i)laintiffs  in  said  action  are  non- 
residents of  the  county  of ,  and  reside  respectively 

as  follows:  the  said ,  at ,  in  the  county  of 

,  etc. ;  or  that  the  defendant  is  about  to  depart  from 

the  county  of with  intent  not  to  return  thereto,  as 

Avill  appear  from  the  following  facts  (state  same)]. 

That  this  action  is  brought  to  recover  a  fine  \or  penalty] 
[or  state  other  cause  of  action  enumerated  in  section  2895], 
and  that  a  sufficient  cause  of  action  exists  therein,  arising 
out  of  the  following  facts,  viz.  [state  facts  constituting  the 
cause  of  action]. 

R.  R. 

[Jurat  as  in  form  No.  46.] 


No.  1539. 
Order  of  Arrest  Granted  l)y  Justice  of  the  Peace, 

(Code  Civ.  Pro.,  §g  2896,  2897.) 

[Title  of  cause  as  in  form  No.  1535.] 

It  having  appeared  to  me  by  the  affidavit  of  C.  D.  [the 
plaintiff  {or  plaintiff's  attorney)  in  the  above  entitled  ac- 
tion], that  a  sufficient  cause  of  action  exists  against  the 
defendant,  E.  F.,  in  the  above  entitled  action,  which  is 
brought  to  recover  a  fine  \or  penalty]  [or  state  other  object 
of  the  action],  and  that  the  defendant  is  not  a  resident  of 
the  county  [or  state  other  case  under  section  2894  of  the 
Code  of  Civil  Procedure],  and  that  the  case  is  within  the 
provisions  of  sections  2894  and  2895  of  the  Code  of  Civil 
Procedure,  and  the  plaintiff  having  given  the  written  un- 

'  The  affidavit  may  be  made  by  the  or  his   attorney,    omit  the  clause  in 

plaintiff  or  by  another  person.     (Code  brackets. 

Civ.  Pro.,  §  2896.)    When  made  by  See,  also.  Wells  v.  Sisson  (14  Hun, 

any  person   other  than   the  plaintiff  267). 


Justices'  Coukts.  1383 

dertaking,  on  his  part,  to  the  defendant,  as  required  by  sec- 
tion 2896  of  the  Code  of  Civil  Procedure  : 

I,  R.  C,  a  justice  of  tlie  peace  of  the  town  of ,  m 

the  county  of ,  do  hereby  order  and  direct  the  con- 
stable who  serv^es  the  within  [or  annexed]  summons  in  the 
above  entitled  action,  to  arrest  the  said  defendant,  to  brinor 
him  forthwith  before  me,  and  to  notify  the  said  plaintiff  of 
the  said  arrest,  if  he  can  do  so  with  reasonable  diligence.' 

Dated ,  18—. 

R.  C,  Justice  of  the  Peace. 


No.  1540. 
Undertaking  upon  Application  for  Order  of  Arrest. 

(Code  Civ.  Pro.,  §2896.) 

[Title  of  cause  as  in  form  No.  1535.] 

Whereas,  the  above  named  plaintiff  has  applied  \or  is 
about  to  apply]  for  an  order  for  the  arrest  of  the  defendant 
in  the  above  entitled  action,  which  is  to  be  brouglit  for  the 
recovery  of  a  fine  \or  penalty],  etc.,  and  the  defendant  in 

which  is  not  a  resident  of  the  county  of \or  state 

other  fact  under  section  2894  of  the  Code  of  Civil  Pro- 
cedure]. 

Now,   therefore,  we,  E.  F.,  of [and  G.  H.,  of 

],''  do  hereby  [jointly  and  severally]  undertake,  pur- 
suant to  statute,  to  and  with  the  said  defendant,  tlmt  if  tlie 
defendant  recovers  judgment  in  this  action,  the  plaintiff  will 
pay  all  costs  which  may  be  awarded  to  the  defendant,  and 
all  damages  which  he  may  sustain  by  reason  of  the  arrest, 

not  exceeding  the  sum  of  ■ dollars.' 

[Signatures  as  in  form  No.  340.] 

In  presence  of . 

[Acknowledgment  as  in  form  No,  340,  or  proof  as  in  form 
No.  538,  affidavits  and  approval  as  in  form  No.  340.] 

•  This  order  is  to  be  indorsed  upon  order  of  arrest  is  granted  and  exc- 

or  attached  to  the  summons.     (Code  cutcd,  see  section  2934,  Code  Civ.  Pro. 

Civ.  Pro.,  g  2897.)     As  to  contents  of  '  One  or  more  sureties.     (Code  Civ. 

the  order,  see  the  same  section;  as  to  Pro.,  t;  289(5.) 

form  of  summons  in  such  case,  see  *  At  Icasloiic  liiiiidrcd  dollars.   (Code 

id.,  c  2877,  and  form  No.  IT):}!.  Civ.  Pro.,  g  2890.) 

As   to  joining  of   issue  where   an 


1384  Forms  RELATiixa  to 

No.  lo41. 
Returu  of  Constable  to  Order. 

(Code  Civ.  Pro.,  i^  2899.) 

I,  M.  C,  the  constable  of  the  county  of by  whom 

the  summons  in  the  within  entitled  action  was  served,  do 
hereby  certify  and  return,  that  at  the  time  of  serving  the 
said  summons  I  executed  the  within  order  of  arrest,  by 
arresting  the  defendant,  and  forthwith  taking  him  before 
R.  C,  the  justice  who  made  the  said  order  [or  before  M.  T., 
a  justice  of  the  peace,  the;  justice  who  made  the  said  order 
being  absent  {or  unable  to  try  the  action)],  and  that  I  have 
notified  the  plaintiff  of  the  arrest  [or  that  I  have  not  been 
able,  with  due  diligence,  to  notify  the  plaintiff  of  said 
arrest].* 

Dated ,  18—. 

M.  C,  Constable, 


ISTo.  1542. 
Notice  of  Application  for  Discharge  from  Arrest. 

(Code  Civ.  Pro.,  §  2901.) 

[Title  of  cause,  as  in  form  No.  ISBo.] 

Take  notice,  that  the  defendant  will  apply  to  R.  C,  jus- 
tice of  the  i)eace  of  the  town  of ,  in  the  county  of 

,  at,  etc.,   on,   etc.,  for  an  order  discharging  him 

from  arrest,  under  the  order  heretofore  made  in  the  above 
entitled  action. 

That  said  application  will  be  founded  upon  the  papers 
upon  which  the  said  order  was  granted  [and  upon  the  com- 
plaint in  said  action],  with  copies  of  which  you  are  here- 
with served." 

Dated ,  18—. 

Yours,  etc., 
C.  D.,  Defendant  [or  Attorney  for  Defendanf]. 
To  A.  B.,  Plaintiff  [or  to  E.  F.,  Attorney  {or  Agent)  for  the 
Plaintiff]. 

'  As  to  proceedings  of  constable  sub-  *  See  Stem  v.  Moss  (6  Civ.  Pro.  R. , 
sequent  to  the  arrest,  see  Code  Civ.  184),  McNeary  v.  Chase  (30  Hun,  491). 
Pro.,  §  2900. 


Justices'  Courts.  1385 

No.  1543. 
Order  Biscliargiiii;  Defeiuiaut  from  Arrest. 

(Code  Civ.  Pro.,  §2901.) 

[Title  of  cause  as  in  form  No.  1535.] 

An  application  having  been  made  by  the  defendant  before 
me,  at,  etc.,  on,  etc.,  founded  ux)on  the  papers  u])()n  which 
the  order  of  arrest  heretofore  made  by  me  herein  was 
granted  [and  upon  the  complaint  herein],  for  the  discharge 
of  the  defendant  from  said  arrest,  and  two  days  personal 
notice  having  been  given  to  the  plaintiff  of  said  application, 
1  do  hereby  order  and  direct,  on  motion  of,  etc.,  after  hear- 
ing, etc.,  that  the  said  defendant  be  and  ke  is  hereby  dis- 
charged from  said  arrest.' 

Dated  at ,  on  this day  of ,  18 — . 

R.  C,  Justice  of  the  Peace. 


No.  1544. 

Affldayit  to  Procure  Discharge  Iby  Justice  of  the  Peace  of 
Privileged  Person  from  Arrest. 

(Code  Civ.  Pro.,  §  2904.) 

See  form  No.  184.    

No.  1545. 

Order  of  Justice  of  the  Peace  Discharging  Privileged  Per- 
son from  Arrest. 

(Code  Civ.  Pro.,  §2904.) 

See  form  No.  185.     

Article  Fourth, 
forms  relating  to  attachment  of  property. 

(Code  Civ.  Pro.,  Ch.  19,  Tit.  2,  Art.  4.) 

No.   1546.     Affidavit  for  attacliau'iit  on  aiiitlifulion- to  justice  of  the  peace. 

1547.  Warrant  of  atlaclinicnt  isslicd  liy  Justice  of  tin;  peace. 

1548.  Undertaking  on  granting  warrant  of  attachment  by  justice  of  the 

peace. 

1549.  Inventory  of  atljielifd  property. 

'  See  the  ca.'ics  cited  iii  note  2  to  last  form.  Ko.  1542 

174 


1380  FoKMS    ivELATlNG   TO 

Jio.  1550.     Defendant's  undertaking  on  attachment. 

1551.  Bond  of  third  person  on  claim  to  property  attached. 

1552.  Constable's  return  to  warrant  of  attachment  issued  by  justice  of 

the  peace. 

1553.  Motion  to  vacate  or  motllly  wairaut  or  to  increase  the  plaintiff's 

security.  

No.  1546. 

Affidavit  for  Attachment  on  Application  to  Justice  of  the 

Peace. 

(Code  Civ.  Pro.,  g§  2905,  2906.) 

As  in  form  No.  236  to  end  of  paragraph  one,  and  from 
thence  as  follows :  That  said  action  is  brouglit  to  recover 
damages  for  [the  breach  of  an  express  {or  implied)  con- 
tract], [or  state  other  cause  of  action  nnder  Jtection  2905 
of  the  Code  of  Civil  Procedure],  and  that  the  plaintiff 
claims  and  is  entitled  to  recover  therein  from  the  defendant 

the  sum  of over  and  above  all  counterclaims  known 

to  him,  upon  a  cause  of  action  existing  in  his  favor  against 
the  said  defendant,  arising  out  of  the  following  facts  [here 
state  the  facts  constituting  the  cause  of  action,  and  where 
any  of  the  material  facts  are  stated  upon  information  and 
belief,  add  affidavit  of  informant  or  account  for  its  absence]. 

That  the  said  defendant  is  not  a  resident  of  the  State  of 

New  York,  but  that  he  resides  at  the of , 

in  the  [State]  of ^or  state  other  requirement  of  sub- 
division two  of  section  2906  of  the  Code  of  Civil  Procedure]. 

The  plaintiff,  therefore,  hereby  applies,  etc.  [conclude  as 
in  last  paragraph  of  form  No.  236].' 


No.  1547. 
Warrant  of  Attachment  Issued  l>y  Justice  of  the  Peace. 

(Code  Civ.  Pro.,  §  2907.) 

[Title  of  cause  as  in  form  No.  1535.] 

The  People  of  the  State  of  Neto  York,  to  any  Constable  of 

the  County  of / 

The  plaintiff  having  shown  by  affidavit,  filed  with  me  at 


'  See,  also,  forms  Noa.  236-240,  and  Y.  Supp.,  107),  Bump  v.  Daheny  3b 
notes  thereto;  also  Solinger  v.  Patrick  State  Rep.,  114),  Kingsford  v.  Butler 
(7  Daly,  408;,  Riley  v.  Skidmore  (6  N.     (71  Hun,  598). 


Justices'  Courts.  1387 

the  time  of  granting  this  warrant,  to  my  satisfaction,  that  a 
sufficient  cause  of  action  exists  against  the  defendant,  in 
favor  of  the  plaintiff  in  the  above  entitled  action,  to  recover 
damages  for  breach  of  an  express  [or  implied]  contract  [or 
state  other  cause  of  action  specihed  in  section  2905  of  Code 
Civil  Procedure]  [and  that  the  plaintiff  is  entitled  to  recover 
therein  the  sum  of dollars  over  and  above  all  coun- 
terclaims known  to  him],'  and  that  the  defendant  is  not  a 
resident  of  the  State  [or  state  other  requisite  under  subd.  2 
of  section  2906  of  Code  Civil  Procedure],  and  the  plaintiff 
haying  given  a  written  undertaking  on  his  part  to  the  de- 
fendant as  required  by  me,  with  a  surety  [or  sureties]  ap- 
proved by  me,  as  provided  by  section  2908  of  the  Code  of 
divil  Procedure. 

I,  R.  C,  a  justice  of  the  peace  of  the  town  of ,  in 

the  county  of ,  issuing  the  summons  in  said  action, 

do  at  the  time  of  issuing  said  summons  require  you  to 

attach,  on  or  before  the day  of ,  18 — ,*  and 

safely  to  keep,  as  much  of  the  said  defendant's  goods  and 
chattels,  within  your  county,  as  will  satisfy  the  plaintiff's 
demand,  which  amounts,  as  stated  in  said  affidavit,  to  the 

sum  of dollars,  with  the  costs  and  expenses,  and  to 

make  your  return  hereon  to  me  at  the  time  when  the  said 
summons  is  returnable. 

Dated  at  the  town  of ,  in  the  county  of , 

this day  of ,  18 — .' 

R.  C,  Justice  of  the  Peace. 


No.  1548. 

Undertaking  on  Granting  of  Warrant  of  Attachment  by 
Justice  of  the  Peace. 

..To  I,-  c\y.  Pro.,  §  2908.) 

[Title  of  cause.] 

Whereas,  the  above  named  plaintiff  has  applied  \or  is 
about  to  apply]  to  R.  C,  a  justice  of  the  jiencf^  of  the  town 

'  Insert  this  clause  in  brackets  if  the  '  At  least  six  days  Ix-forc  Uic  reliirn 

action  is  npon  a  jiidf^nnciit,  or  to  re-  day  of  the  summonH.    (Code  Civ.  Pro., 

cover  for  breaeli  of  a  coiilract.     (Code  §  2007.) 

Civ.  Pro.,  §2906,  subd.  1.)  'TIk- warriinl  inu.sl  be  ^rrantcd  l>y  thy 


1388  Forms  Relating  to 

of ,  in  the  county  of ,  for  a  warrant  of  attacli- 

ment  against  the  property  of  the  defendant  in  the  above 
entitled  action,  in  a  case,  provided  by  law  ;  and, 

Whereas,  the  said  justice  has  required,  bi-fore  granting 
the  said  warrant,  a  written  undertaking  to  the  said  defend- 
ant, on  the  part  of  the  plaintitf,  to  the  effect  as  required  by 
section  2908  of  the  Code  of  Civil  Procedure  : 

Now,  therefore  [we],  E.  F.,  of [and  G.  H.,  of 

],'  do  hereby  [jointly  and  severally]  undertake,  pur- 
suant to  the  statute,  to  and  with  said  defendant,  that  if  the 
defendant  recovers  judgment,  or  the  warrant  of  attachment 
is  vacated,  the  plaintiff  will  pay  all  costs  whicli  may  be 
awarded  to  the  defendant,  and  all  damages  which  he  may 
sustain   by  reason  of  tlie  attachment,   not  exceeding  the 

sum  of dollars,''  and  that,  if  the  i)laintiff  recovers 

judgment,  he  will  pay  to  the  defendant  all  money  received 
by  him  from  property  taken  by  virtue  of  the  warrant  of 
attachment,  or  upon  any  bond  given  therefor,  over  and 
above  the  amount  of  the  judgment  and  interest  thereupon. 

Dated ,  18—. 

[Signatures  as  in  form  No.  340.] 

[Acknowledgment  as  in  form  No.  340,  or  proof  as  in  form 
No.  638  ;  affidavit  and  approval  by  justice  as  in  form  No* 
340.]  

No.  1549. 
Inyentory  of  Attached  Property. 

(Code  Civ.  Pro.,  §2909.) 

Constable'  s  Inventory. 
An  inventory  of  the  goods  and  chattels  of  the  defendant; 
levied  upon  and  taken  into  my  custody  upon  and  by  virtue 
of  the  foregoing  warrant  of  attachment,  this day 

justice  who  issues  the  summons  at  the  See,  also,  form  No.  242,  and  notes 
time  when  the  summons  is  issued,  and  thereto,  and  Sullivan  v.  Presdee  (9 
it  must  he  indorsed  thereupon  or  an-    Daly.  552). 

nexed  thereto.  (Code  Civ.  Pro.,  §  '  One  or  more  sureties.  Code  Civ. 
2907.)  Pro.,  §2908.) 

»  At  least  two  hundred  dollars.   (Id.) 


Justices'  Courts. 


1389 


of  

article,  viz.: 


-,  18—,  with  the  estimated  value  of  each  item  or 


ESTIBIATBD   VaLUB. 

Dollars. 

Centt. 

-,  Constable. 


No.  1550. 


Defendant's  Undertaking  on  Attachment. 

(Code  Civ.  Pro.,  §  2911.) 

[Title  of  cause.] 

The  plaintiff  having  obtained  herein  a  warrant  of  attach- 
ment under  and  by  virtue  of  which  the  constable  to  whom 
the  summons  herein  and  said  warrant  of  attachment  were 
delivered,  has  levied  upon  and  taken  into  his  custody  cer- 
tain goods  and  chattels  of  the  defendant,  and  the  defendant 
desiring  that  the  said  constable  should  redeliver  said  prop- 
erty to  him  and  to  obtain  such  redelivery  : 

Now,  therefore,  [we]  E.  F.,   of [and  G.  H.,  of 

],'  do  hereby  [jointly  and  severally]  undertake  to 

and  with  the  plaintiff  in  the  sum  of dollars  [that 

being  at  least  twice  the  value  of  the  property  attached  as 
stated  in  the  inventory],  that  if  judgment  is  rendered  against 
the  defendant  and  an  execution  is  issued  thereupon  within 
six  months  after  the  giving  of  this  undertaking  the  prop- 
erty attached  shall  be  produced  to  satisfy  the  execution. 

Dated  the day  of ,  18—. 


Tn  presence  of 


[Signatures  as  in  form  No.  IMO.] 


[Acknowledgment  as  in  form  No.  340,  or  ])i<)()f  as  in  form 
No.  538,  affidavits  ai.  ■*  approval  by  constable  or  justice  as 
in  form  No.  340.] 


'  One  or  more  8uretie.s.     (Code  Civ.  Pro.,  §  2911.) 


1390  Forms  Relating  to 

No.  1551. 
Bond  of  Third  Persou  ou  Claim  to  Property  Attaclied, 

(Code  Civ.  Pro.,  g  2912.) 

As  in  form  No.  340  to  [*J,  und  from  thence  as  follows : 

That,  whereas,  F.  G.,  a  constable  of  the  county  of  • , 

did,  by  virtue  of  a  warrant  of  attachment  issued  by  R.  C, 

Esq.,  a  justice  of  the  jDeace  of  the  town  of ,  in  the 

county  of ,  in  an  action  between  A.  B.,  plaintiff, 

and  C.  D.,  defendant,  against  the  property  of  the  said  de- 
fendant, seize  certain  property,  to  wit  [describe  the  prop- 
erty] ;  and, 

Whereas,  the  above  bounden  A.  B.  claims  the  said  prop- 
erty  attached,  and  the  same  has  not  been  reclaimed  by  the 
defendant : 

Now,  therefore,  the  condition  of  this  obligation  is  such, 
that  if  the  above  bounden  A.  B.  shall,  in  an  action  on  this 
bond,  commenced  within  three  months  hereafter,  establish 
that  he  was  the  general  owner  of  the  said  i)roperty  claimed, 
at  the  time  of  the  seizure,  or,  if  he  fails  so  to  do,  shall  pay  to 
the  plaintiff  the  value  thereof,  with  interest,  then  this  obli- 
gation to  be  void,  otherwise  to  be  and  remain  in  full  force 
and  virtue. 

[Signatures  and  seals  as  in  form  No.  340.] 

In  presence  of . 

[Acknowledgment  as  in  form  No.  340,  or  proof  as  in 
form  No.  538  ;  affidavits  and  approval  by  constable  or  jus- 
tice as  in  form  No.  340.] 


No.  1552. 


Constable's  Return  to  Warrant  of  Attachment  Issued  hjr 
Justice  of  the  Peace. 

(Code  Civ.  Pro.,  §2915.) 

[Town]  of 


County  of 


ss. 


I,  M.  N.,  a  constable  of  the  county  of ,  to  whom 

the  within  [or  annexed]  warrant  of  attachment  was  issued 
at  the  same  time,  with  the  annexed  summons,  hereby  cer- 
tify and  return  to  the  foregoing  warrant  of  attachment  that, 
by  virtue  thereof,  on  the day  of  ;— ,  18 — ,  I 


Justices'  Courts.  1391 

levied  upon  and  took  into  my  custody,  as  such  constable, 
the  property  of  the  defendant,  specified  in  the  annexed 
inventory,  and  immediately  made  an  inventory  thereof, 
which  is  hereto  annexed. 

That  immediately  after  making  the  inventory,  and  at  least 
six  days  before  the  return  day  of  the  foregoing  [or  annexed] 
summons,  I  did  serve  the  said  summons,  together  with  the 
said  warrant  of  attachment  and  inventory,  upon  the  de- 
fendant, C.  D.,  by  delivering  a  copy  of  each  to  said  defend- 
ant personally. 

[Or  by  leaving  a  copy  of  each,  duly  certified  by  me,  at 
the  last  place  of  residence  of  the  said  defendant,  in  the 

county  of ,  with  M.  D.,'  a  person  of  suitable  age 

and  discretion,  to  wit :  of  the  age  of  at  least years, 

1  not  having  been  able,  with  reasonable  diligence,  to  find 

the  said  C.  D.  within  the  county  of ;  or  by  posting 

a  copy  of  each,  duly  certified  by  me,  on  the  outer  door  at 
the  last  residence  of  the  said  defendant  in  the  county  of 

,  and  also  by  depositing  another  copy  of  each  in  the 

nearest  post-office,  to  wit :  the  post-office  at ,  in- 
closed in  a  sealed  post-paid  wrapper,  directed  to  the  said 
defendant  at  his  residence,  I  not  being  able  to  find  any  per- 
son of  suitable  age  and  discretion  at  his  place  of  residence 
to  whom  the  same  could  be  delivered  ;  or  by  delivering  a 
copy  of  each,  duly  certified  by  me,  to  M.  D.,'  the  person  in 
whose  possession  the  attached  proi)erty  was  found,  at,  etc., 
the  said  defendant  having  no  place  of  residence  in  the 
county  of ]/ 

Dated ,  18—. 

M.  N.,  Constable. 

No.  1553. 

Motion  to  Vacate  or  Modify  Warrant  or  to  Increase  the 
Plaintiff's  Security. 

(Code  Civ.  Pro.,  g  2916.) 

See  form  No,  271,  and  notes  thereto,  and  see  section  2917 


'  The  name  of  tlie  person  to  wliom  him,  as  lu-arly  as  may  he.     (Code  Civ. 

the  copy  was  delivered  must  Ik;  stated,  Pro.,  ^  121)1  fi.) 

if  known;    if   not   known,  the   return  '^  See  (\u\r  Civ.  Pro.,  >;  'JOIO. 

must  describe  him,  no  an  to  identify  Ah  tu  pruceediugu  where  thv  8uni> 


1392  Forms  Relating  to 

of  the  Code  of  Civil  Procedure,  as  to  the  effect  of  vacating 
warrant. 

Article  Fifth. 

(Code  Civ.  Pro.,  Cli.  19,  Tit.  2,  Art.  5.) 
FORMS  RELATING  TO  REPLEVIN  IN  JUSTICES'  COURTS. 

No.  1554.  Affidavit  to  procure  replevin  iu  justice's  court. 

1555.  RequisitioQ  to  coustable  to  replevy  chattel. 

1556.  Undertaking  to  procure  replevin. 

1557.  Constable's  return  to  requisition  for  replevin  of  chattel. 

1558.  Notice  of  exception  to  sureties  by  defendant. 

1559.  Affidavits  to  require  return  of  chattel  replevied. 

1560.  Undertaking  to  obtain  return  of  chattel  replevied. 

1561.  Notice  of  justification  of  sureties  and  "certificate  of  allowance. 

1562.  Affidavit  by  third  person  or  his  agent  or  attorney  claiming  title  to 

chattel  replevied. 

1563.  Notice  by  constable  to  plaintiff  that  he  requires  indemnity  on  claim 

by  third  person. 

1564.  Executions,  etc.,  in  replevin,  under  section  2931  of  Code  of  Civil 

Procedure. 


No.  1554. 
Affidavit  to  Procure  Replevin  in  Justice's  Court. 

(Code  Civ.  Pro.,  §  2926.) 

See  forms  Nos.  757  and  758,  and  notes  to  those  forms. 


No.  1555. 
Requisition  to  Constable  to  Replevy  Chattel. 

(Code  Civ.  Pro.,  §  2921.) 

To  the  Constable  to  whom  the  sicmmons  in  the  action  enti- 
tled in  the  within  [or  annexed]  ajffidamt  is  deli'^ered  : 

You  are  hereby  required  to  replevy  the  property  described 

in  the  within  \or  annexed]  affidavit  on  or  before  the 

day  of ,  18—.* 


Dated ,  18- 


J.  G.,  Justice  of  the  Peace. 


mens  was  not  personally  served,  see  §  2921.)     See,    also  Jaynes  v.  Jaynes 

section  2918,  Code  Civ.  Pro.,  and  as  to  [No.  2J,  (8  Civ.  Pro.  R.,  97),  Guyon  v. 

execution  upon  property  attached,  see  Rooney  (17  Civ.  Pro.  Rep.,  172),  Same 

same  section.  v.  Same  (28  State  Rep.,  624),  Bame  v. 

'  At  least  six  days  before  the  return  Seykora  (77  Hun,  529). 
day  of  the  summons.     (Code  Civ.  Pro., 


Justices'  Coukts.  1393 

No.  1556. 
Undertaking  to  Procure  Replevin. 

(.Code  Civ.  Pro.,  §  2920.) 

[Title  of  cause.  ] 

Whereas,  an  action  is  about  to  be  commenced  before  J.  G. 

a  justice  of  the  peace  of  the  town  of ,  in  the  county 

of •,  bj^  the  above  named  jDlaintiff  against  the  above 

named  defendant  to  recover  a  chattel  [or  chattels]  of  the 
estimated  value  of dollars,  and  said  plaintiff  de- 
sires to  cause  the  said  chattel  [or  chattels]  to  be  replevied : 

Now,  therefore,  in  pursuance,  etc.  [conclude  as  in  form 
No.  759]. 

Dated ,  18—. 

A.  F. 

G.  H. 

In  presence  of . 

[Acknowledgment   or  proof,  affidavit  and  approval  by- 
justice  as  in  form  No.  759.] 


No.  1557. 
Constable's  Return  to  Requisition  for  Replevin  of  Chattel. 

(Code  Civ.  Pro.,  §§  2922,  2923.) 

I,  M.  N.,  a  constable  of  the  county  of ,  do  hereby 

certify  and  return,  that  on  the day  of , 

18 — ,  by  virtue  of  the  annexed  affidavit,  and  the  requisi- 
tion indorsed  thereupon,  I  replevied  the  following  property 
described  in  said  affidavit,  to  wit  [describe  same],  which  I 
found  in  the  possession  of  the  defendant  [or  of  C.  D.,  the 
defendant's  agent]  [here  state  the  manner  of  service  of  the 
summons,  affidavit  and  requisition  as  in  form  No.  1552,  and 
the  other  proceedings  thereupon].' 

Dated ,  18—. 

A.  B.,  Constable.. 


'  See,  also,  fonns  l\os.  709^773. 
176 


1394  Forms  Relating  to 

No.  1558. 
Notice  of  Exception  to  Sureties  by  Defeudant. 

(Code  Civ.  Pro.,  g  2924.) 

[Title  of  cause.] 

Sir — Take  notice,  that  the  defendant  excepts  to  plain- 
tiff's sureties,  in  the  undertaking  served  upon  him  on  the 

day  of ,  18 — ,  in  the  above  entitled  action. 

Dated ,  18— .i 

M.  N.,  Defendant. 
To  [A.  B.,  Plaintiffs  or  C.  D.,  Constable  of  the  County  qf 
].  

No.  1559. 
Affidavits  to  Require  Return  of  Chattel  Replevied. 

(Code  Civ.  Pro.,  §2925.) 

See  forms  Nos.  761  and  762,  and  notes.  Add  same  notice 
as  in  form  No.  761,  omitting  the  words  "by  you,"  and 
direct  to  the  justice  instead  of  to  the  sheriff. 


No.  1560. 
Undertaking  to  Obtain  Return  of  Chattel  Replevieio 

(Code  Civ.  Pro.,  §  2925.) 

As  in  form  No.  763,  making  necessary  changes^  and  omit- 
ting the  words  in  that  form  "  or  if  the  action  aba<^es  in   ar. 
sequence  of  the  defendant's  death. "2 


No.  1661. 

Notice  of  Justification  of  Sureties  and  Certificate  of  Aliow^ 

auce. 

(Code  Civ.  Pro.,  §2926.) 

[Title  of  cause.] 

Sirs — Take  notice,  that  the  sureties  named  in  I'liG  under- 
taking given  in  this  notion  by  the  plaintiff,  dated , 

18 — ,  will  justify  before  J.  G.,  Esn..  a  justice  of  the  peace 
of  the  tovsm  of .  in  the  county  of ,  at  the 

'  See  Goff  v.  Bliss  (12  Civ,  Pro.  R.,         »  See  Clark  v.  Hooper  (69  Hun,  445), 
99.) 


Justices'  Courts.  1395 

office  of  said  justice  in  said  town,  on  the day  of 

,  18 — ,  at o'clock  in  the noon. 

Dated ,  18—. 

CD.,  Constable. 

I  find  the  sureties  mentioned  in  the  within  \or  annexed] 
undertaking  to  be  sufficient,  and  hereby  allow  the  same. 

Dated ,  18—. 

J.  G.,  Justice  of  the  Peace, 


No.  1562. 

Affidavit  by  Third  Person  or  His  Agent  or  Attorney  Claim- 
ing Title  to  Chattel  Replevied. 

(Code  Civ.  Pro.,  §  2929.) 

See  forms  Nos.  765  and  766,  with  exceptions  and  changes 
mentioned  in  section  2929;  also,  see  notes  to  form  No.  765. 


No.  1563. 

Notice  by  Constable  to  Plaintiff  that  He  Requires  Indem- 
nity on  Claim  by  Third  Person. 

(Code  Civ.  Pro.,  §  2929.) 

See  form  No.  764,  with  exceptions  and  changes  mentioned 
in  section  2929. 


No.  1564. 

Executions,  etc.,  in  Replevin,  under  Section  2931  of  Code 
of  Civil  Procedure. 

(Code  Civ.  Pro..  §2931.) 

See  form  No.  1598;  also,  forms  Nos  561,  562.  564,  775, 
779-783,  and  changes  mentioned  in  section  2931;  and  see 
Delin  v.  Stohl  (2  Civ.  Pro.  R.  [Browne],  222). 


1396  Forms  Relating  to 


TITLE  III. 

FORMS  RELATING  TO  PLEADINGS  IN  JUSTICES'  COURTS,  INCLUD, 
ING  COUNTERCLAIMS  AND  PROCEEDINGS  UPON^  ANSWER  OP 
TITLE, 

(Code  Civ.  Pro.,  Ch.  19,  Tit.  3.) 

No.  1564a.  Undertaking  to  remove  action  to  Kings  County  court. 

1565.  Complaint  in  justice's  court,  geneial  form. 

1566.  Answer  in  justice's  court,  general  form. 

1567.  Answer  of  title  in  justice's  court. 

1568.  Undertaking  on  intei-posing  answer  of  title. 


No.  1564a. 

Undertaking  to  remove  aotion  to  Kings  County  Court. 

(Code  Civ.  Pro.,  §  2934.) 

[Title  of  action.] 

Whereas,  an  issue  of  fact  [or,  of  law]  has  been  joined 
in  the  above  entitled  action,  in  which  the  judgment 
demanded  hy  the  plaintiff  in  his  complaint  [or,  by  the 
defendant  in  his  answer]  exceeds  the  sum  of  one  hundred 
dollars ;  [or,  the  value  of  the  chattels  sought  to  be 
recovered  as  fixed  by  the  plaintiff  in  his  complaint  (or  by 
the  defendant  in  his  answer)  exceeds  the  sum  of  one 
hundred  dollars],  and  whereas  the  defendant  has  made 

application,    pursuant    to    statute,    to   ,   the  justice 

before  whom  said  action  has  been  brought,  for  an  order 
removing  said  action  into  the  county  court  of  the  county 
of  Kings ; 

Now,  therefore,  I  [or  we],  E.  F.,  of  [and  G.  H., 

of ]/ do  hereby  [jointly  and  severally]  undertake, 

pursuant  to  statute,  in  the  sum  of dollars,-^   that  the 

said  defendant  will  pay  to  the  said  plaintiff,  the  amount 
of  any  judgment,  including  costs,  that  may  be  recovered 

'  One  or  more  sureties.     (Code  Civ.  ages  claimed,  or  twice  the  value  of  the 

Pro.,  §  2934.)  chattel  or  of  all  the  chattels  claimed, 

"  A  sum  fixed  by  the  justice,  not  ex-  as  stated  in  the  pleading  or  affidavits, 

ceeding  twice  the  amount  of  the  dam-  (Same  section.) 


1306a  Forms  Relating  to 

against  him  in  the  said  county  court,  in  the  said  action 
so  removed.'  E.  F. 

Dated ,  1 .  [G.  li.J 

In  presence  of . 

[Acknowledgment,  etc.,  as  in  form  No.  1568.] 


No.  1565. 
Complaint  in  Justices'  Court,  General  Form. 

(Code  Civ.  Pro.,  §  2936.) 

See  general  form  of  complaint,  form  No.  120,  and  note& 
thereto.^ 


No.  1566. 
Answer  in  Justice's  Courts,  G-eneral  Form. 

(Code  Civ.  Pro.,  §  2938  ) 

See  general  forms  of  answer  Nos.  140-143,  and  No.  145, 
and  notes  to  those  forms.^ 


No.  1567. 

Answer  of  Title  in  Justice's  Court. 

(Code  Civ.  Pro.,  §  2951.) 

JUSTICE'S  COURT. 


RicHAPvD  Roe 

agst. 

James  Jackson. 


Before  J.  H.,  Esq.,  otie  of 
the  Justices  of  the  Peace, 
in  and  for  the  County  of 


The  answer  of  the  defendant  above  named  to  the  plain- 
tiff's complaint  herein,  respectfully  shows,  that  the  said 

'  See  section  2934  of  Code  Civ.  Pro.,  McMullin  v.  Mackey  (6  N.  Y.  Supp., 
as  amended  by  chapter  380  of  Laws  of  885),  Culmane  v, Schmidt  (35  Hun, 345), 
1893,  and  see  Clark  v.  Hooper  (69  Thomas  v.  Jones  (47  id.,  81),  Lansing- 
Hun,  445).  v.  Stevens  (20  State  Rep.,  320),  Button 

*  See,  also,  Bradner  v.  Howard  (75  v.    Lusk   (32  id.,    531),    Hartwell   v. 

N.  Y.,  417  ;  aff 'ff  S.  C,  14  Hun.  420),  Young  (67  Hun,  472). 

Howe  Sewing  Machine  Co.   v.   Haupt  '  See  also,  Green  v.  Waite  (19  Week. 

(7  Daly,  108),  Frazier  v.   Gibson    (15  Dig.,  436;  S.  C,  33  Hun,  191),  Steinam 

Hun,37),  Doner  V.Williams  (20  Week.  v.  Bell  (7  Misc.,  318),  Rude  v.  Cran- 

Dig.,  457,  458)  ;  also,  ch.  414  of  Laws  dall   (11   Civ.  Pro.  R.,    11),    Doty   v. 

of  1881,  permitting' the  veriScation  of  Campbell   (1   How.  Pr.  [N.  S.],  101), 

pleadings  in  the  justice's  court,  and  ch.  Adams  v.  Robeson   (19  W.  Dig.,  468)^ 

472  of  Laws  of  1889,  amending  §§  3  and  Gerould  v.  Crank  (85  Hun.  500),  Har- 

4,  id.;  Hoffman  v. Barton  (47 Hun,  409),  ley  v.  Fitzgerald  (84  id.,  305). 


Justices'  Courts.  1397 

premises  mentioned  in  the  said  complaint,  and  in  which  the 
said  trespasses  are  therein  supposed  to  have  been  commit- 
ted, now  is,  and  at  the  time  when  the  said  trespasses  are  by 
the  said  complaint  supposed  to  have  been  committed,  was 
the  close,  soil  and  freehold  of  him,  the  said  defendant ; 
wherefore  the  said  defendant,  in  his  own  right,  at  the  said 
time  when,  etc.,  broke  and  entered  the  said  close  in  which, 
etc.,  and  with  his  foot,  in  walking,  trod  down  the  grass 
there  growing,  etc.  [enumerating  the  several  acts  alleged  as 
trespasses  which  he  means  to  justify],  as  he  lawfully  might, 
for  the  cause  aforesaid,  which  is  the  same  trespass  whereof 
the  said  plaintiff  hath,  in  his  said  complaint,  complained. 
Wherefore  he  prays  judgment,  and  that  the  said  plaintiff 
may  be  barred  from  having  or  maintaining  his  aforesaid  ac- 
tion against  him.* 

JAMES  JACKSON,  Defendant 
[or  W.  F.,  Attorney  for  Defendant]. 

The  above  plea  was  delivered  to  me,  at  the  time  of  joining 

issue  in  the  above  cause,  on  the day  of y 

18 — ,  and  is  hereby  countersigned  by  me. 

J.  H.,  Justice  of  the  Peace, 


No.  1568. 
Undertaking  on  Interposing  Answer  of  Title. 

(Code  Civ.  Pro.,  §  2952.) 

[Title  of  cause.] 

Whereas,  an  answer  is  about  to  be  made  by  the  defendant 
in  the  above  entitled  action,  setting  forth  facts,  showing  that 
the  title  to  real  property  will  come  in  question  therein : 

Now,   therefore,  [we]   E.   P.,  of ,  [and  G.  II.,  of 

],"  do  hereby   [jointly  and   severally]   undertake, 

pursuant  to  statute,  that  if  the  plaintiff,  within  twmty  days 
hereafter,  pursuant  to  statute,  deposits  widi   tlic  justice  a 

'See  Kelly  v.  N.  Y.  ami  Manhattan  Dig.,    1),    Firth  v.    Veeiler    (34   State 

B.  R.  R.  Co  (19  Hun.  3133),  llawkiiiH  v.  Hep.,  678),  Harding  v.  Kllston  (lit  Civ. 

Pet«rBOn  ('.(  Week.  Dig.,  408),  Ryan  v.  Pro.  R..  352),  Lane  v.  Young  (lit;  Hum, 

Han-igHn('.»Hun,52(J),Masten  v.Oicott  563),    Van  Elteir  v.  Van  Ktten  (tl'J  id.. 

(60  How.  Pr.,  lOf);  S.  C..24  Hun,&87),  499),    Hathaway    v.    .Jenks    (CT    Hnn. 

Gate.s  V.    Canfield    (2  Civ.    Pro.   Rnp.  2S9),    Peopln  ex  rel.  lialdwin  v.  (Joid- 

fSrowne],  254).   Matter  nf   White   (12  fogle  (23  Civ.  Pro.  R..  417). 

Abb.  N.  C,  348),  and  Code  Civ.  Pro.,  "One  or  more   HiiretieH.      (Code  Civ. 

§  2958  ;  Van  Ktten  v.    Van  Ktten  ((;9  Pro.,  §  2952.) 
Hnn,  499),  Hhnfelt  v.  Hweet  (15  Week. 


1398  Forms  E,elating  to 

summons  and  complaint  in  a  new  action  about  to  be  brought 

in  the  [name  proper  couit],  as  prescribed  in  section  2953  of 

the  Code  of  Civil   Procedure,    the   defendant   will,   witliin 

twenty  days  after  the  dej^osit,  give  a  written  admission  of 

the  service  thereof  [and  that  he  will,   at  all  times,  render 

himself  amenable  to  any  mandate  which  may  be  issued  to 

enforce  a  iinal  judgment  in  the  action  so  to  be  brought'].* 

Dated ,  18—. 

E.  F. 

[G.  H.] 

In  presence  of . 

[Acknowledgment  or  proof,  affidavits  and  approval  by 
Justice  as  in  forms  Nos.  340,  538.] 


TITLE  IV. 
Article  First. 

FORMS  RELATING  TO  ADJOURNMENTS. 

(Code  Civ.  Pro.,  Ch.  19,  Tit.  4,  Art.  1.) 

No.  1569.     Undertaking  upon  adjournment. 

1570.     Undertaking  to  procure  discharge  of  defendant  from  custody  on 
adjournment. 

No.  1569. 
Undertaking  upon  Adjournment. 

(Code  Civ.  Pro.,  §  2963.) 

[Title  of  cause.  ] 

Whereas,  the  defendant  above  named,  has  made  [or  is 
about  to  make]  application  for  an  adjournment  of  the  trial 
of  the  above  entitled  action,  on  the  ground  that  he  cannot 
safely  proceed  to  trial  for  want  of  material  testimony  [or  of 
a  material  witness] : 

Now,  therefore  [we],  F.  G.,  of [and  G.  H.,  of 

],  do  hereby  [jointly  and  severally]  undertake,  pur- 

'  Insert  this  clause  in  brackets  where  Civ.  Pro.,  §  2952.)  See,  also,  Kohl- 
the  defendant  vv^as  arrested  in  the  ac-  brenner  v.  Elsheimer  (19  Hun,  88), 
tion.     (Code  Civ.  Pro.,  §  2952.)  Matter  of  White  (12  Abb.  N.  C,  348), 

'  If  the  defendant  fails  to  comply    as  to  undertaking, 
with  the  undertaking,  the  sureties  are        As  to  pleadings  in  new  action,  see 
liable  thereupon,  to  an  amount  not  ex-     Code  Civ.  Pro.,  §  2957;  Fox  v.  The 
ceeding  two  hundred  dollars.     (Code     Erie  Preserving   Co.    (93  N.  Y.,  54), 

Gould  v.    Patterson    (28  Abb.   N.  C, 
385  ;  63  Hun,  575). 


Justices'  Courts.  1399 

suant  to  law,  tliat,  if  the  plaintiff  recovers  judgment  in  the 
action,  and  if,  before  the  expiration  of  ten  days  after  the 
plaintiff  becomes  entitled  to  an  execution  iq^on  the  judg- 
ment, the  defendant  removes,  secretes,  assigns,  or  in  any- 
way disposes  of  any  part  of  his  property  liable  to  levy  and 
sale  by  virtue  of  an  execution,  except  for  the  necessary 
support  of  himself  and  his  family,  and  if  an  execution 
upon  the  judgment  is  returned  wholly  or  partly  unsatisfied, 
we  will,  upon  demand,  pay  to  the  plaintiff  the  sum  due 
upon  the  judgment." 

Dated ,  18—. 

[Signatures  as  in  form  No.  341.] 

[Acknowledgment  or  proof  as  in  forms  Nos.  340,  538;. 
affidavits  and  approval  by  justice  as  in  form  No.  340.] 


No.  1570. 

Undertaking  to  Procure  Discharge  of  Defendant  from  Cus- 
tody  on  Adjournment. 

(Code  Civ.  Pro..  §2963.) 

[Title  of  cause.] 

Whereas,  the  defendant  has  been  arrested  in  the  above 
entitled  action,  and  has  made  [or  is  about  to  make]  an  ap- 
plication for  an  adjournment  of  the  trial  of  said  action  on 
the  ground  that  he  cannot  safely  proceed  to  trial  for  want 
of  some  material  testimony  [or  a  material  witness] : 

Now,  therefore  [we],  E.   F.,  of [and  G.  H.,  of 

]/do  hereby  [jointly  and  severally]  undertake,  pur 

suant  to  statute,  that  if  the  phiintiff  recovers  judgment  in 
the  action,  and  if  an  execution  is  issued  thereupon  against 
the  person  of  the  defendant,  witliin  ten  days  after  the 
plaintiff  is  entitled  to  the  same,  and,  if  a  return  is  made 
thereto,  on  or  after  the  return  day  thereof,  thnt  the  defend- 
ant cannot  be  found,  Ave  will  pay  to  the  plaintiff  the  amount 
due  upon  the  judgment.' 

Dated ,  18 — . 

E.  F. 

[G.  H.] 
[Acknowledgment,  etc.,  as  in  Insf  form.] 

'SeeSheriilari  V.  Farriham(21  Week.  Corikliii  (IJ  Misc.,   1'22),   Crisp  v.  Rice 

Di^.,  470),    HijtchiiiHdii    v.   (iiout  (24  (S3  Hun,  4(ir<),   KrwelHini    v.  13a»lifley 

ul.,  2:m  ;  S.  C,  40  Hun.  207).  Fennoyer  (15  MIhc.  173),  FiHl.'H  Ivldy  Chemical 

V.  Phillips  (10  State  Rep.,  7:«),   Ked-  Co    v.  Htevetm  (92  Hiin,  171)). 
ford  V.  Snow  (4tj  Hun,  370),  Bonney  v.         ■'  One  or  iuor«  HiirotieH.     (Code  Civ 

Paul   (39  State  Rep.,  596),    Voung-  v.  Pro.,  §  29G3.) 


1400  Forms  IlELAiiNLi  to 


Article  Sp:cond. 
forms  relating  to  compelling  tue  attendance  of  a 

WITNESS. 
(Code  Civ.  Pro.,  Ch    19,  Tit.  4,  Art.  2.) 

No.  1571.  Subpoena  issued  by  justice  of  the  peace. 

1572.  Constable's  return  of  .service  of  subpojua. 

1573.  Affidavit  to  procure  warrant  of  attaclimcnt  for  a  witness. 

1574.  Warrant  of  attachment  against  a  defaulting  witness. 

1575.  Minute  of  conviction  of  witness. 

1576.  Execution  upon  minute  of  conviction  (No.  1575). 


No.  1571. 
Subpoena  Issued  by  Justice  of  the  Peace. 

(Code  Civ.  Pro.,  §2969.) 

County,  ss.  : 


The  People  of  the  State  of  New  York,  to  J.  S.  and  T.  N., 
greeting : 

You  are  commanded  to  ai^pear,  personally,  before  tlie 
subscriber,  a  justice  of  the  peace  of  the  said  county,  at,  etc., 

on,  etc.,  at o'clock  in  the noon,  to  give 

evidence  in  a  civil  action  novv  pending,  then  and  there  to  be 
tried,  between  J.  R.,  plaintiff,  and  R.  F.,  defendant,  on  the 
part  of  the  plaintiff  [state  the  characters  in  which  the  parties 
appear,  as  survivors,  executors,  etc.]. 

[And  you,  the  said  J.  S.,  are  further  commanded  to  bring 
with  you  and  then  and  there  produce  in  evidence  a  certain 
agreement  in  writing  {or  promissory  note,  etc.,  according  to 
the  case),  lately  left  in  your  hand  by  the  said  parties,  and 
all  deeds,  evidences  and  writings  which  you  have  in  your 
custody  or  power  concerning  the  premises.'] 

Hereof  fail  not  at  your  peril. 

3  If  the  trial  of  an  action  in  which  dertaking    thereupon    and    condition 

the  defendant  has  been  arrested,  is  ad-  thereof,  see  Code  Civ.  Pro.,  §§  2965, 

journed  with  the  consent  of  both  par-  29fi6;  Bush  v.  Weeks  (24  Hun,  545), 

ties,   or  upon   the   application  of  the  Livinirston  v.  Morrissey  (6  Civ.   Pro. 

plaintiff,  the   defendant  must  be  dis-  R..  5S.) 

charged  from  custody.      (Code   Civ.  '  Insert  this  duces  ieeum  clause  only 

Pro.   S  2964  ")  when  required. 

As  to  second  adjoummect  and  tin- 


Justices'  Courts.  1401 

Given  under  my  hand  at  the  town  of  ,  in  said 

county,  this day  of ,  18 — . 

J.  G.,  Justice  of  the  Peace. 


No.  1572. 
Constable's  Return  of  Service  of  Subpoena. 

(Code  Civ.  Pro.,  §  2970.) 

I  hereby  certify  that  on  the day  of 


18 — ,  at ,  I  served  the  within  subpoena  on  J.  S.  [one 

of  the  persons],   to  whom  it  is  directed,  b}^  reading   the 
same  \or  stating  the  contents  of  the  same]  to  him  jierson- 

ally,  and  by  paying  [or  tendering]  to  him  the  sum  of 

dollars,  his  lawful  fees  for  attendance  as  a  witness. 

Dated ,  18—. 

J.  M.,  Constable. 


No.  1573. 
Affldayit  to  Procure  Warrant  of  Attachment  for  a  Witness. 

(Code  Civ.  Pro.,  §  2971.) 

[Title  of  cause.] 

State  of  New  York,  ) 
County,       \^^-' 

A.  B.,  of ,  being  duly  sworn,  says,  that  he  is  the 

plaintiff,  etc.  [or  attorney  for  the  plaintiff,  etc.],  in  the  above 
entitled  action  ;  that  the  testimony  of  J.  S.  is  material  to 
the  said  plaintiff  [or  defendant]  upon  the  trial  of  this  action, 
and  that  the  said  J.  S.  neglected  [or  refused]  to  attend  as  a 
witness  in  the  above  entitled  action  in  obedience  to  the 
annexed  subpoena,  and  that  defendant  knows  of  no  just 
cause  for  such  neglect  [or  refusal].* 

A.  B. 

[Jurat  as  in  form  No.  46.] 

[Annex  return  or  affidavit  of  service  of  subpoena  ;  see  last 
form.] 

'  See  Rutherford  v.  Holmes  (66  N.  Y.,  368;  affg  8.  C,  5  Hun,  817). 
176 


1402  Forms  Relating  to 

No.  1574. 
Warrant  of  Attach  ineiit  against  a  Defaulting  Witness. 

(Code  Civ.  Pro.,  §  2971.) 

County,  ss.  : 


The  People  of  the  State  of  New  York,  to  any  Constable  of 
said  County,  greeting  : 

We  command  you  to  attach  J.  S.,  and  bring  him  before 
the  subscriber,  a  justice  of  the  peace  in  and  for  said  county, 

at  his  [dwelling-liouse]  in  the  town  of ,  forthwith 

[or  on  the day  of ,  18 — ,  at o'clock 

in  the  noon]   to   testify  those  things  which  he 

knows,  in  a  civil  action  now  depending  before  the  said  jus- 
tice, between  J.  R.,  plaintiff,  and  R.  F.,  defendant,  on  the 
part  of  the  plaintiff  [or  defendant],  and  also  to  answer  all 
such  matters  as  shall  be  objected  to  against  him  for  that, 
as  has  appeared  to  my  satisfaction,  by  affidavit  [etc.],  the 
said  J.  S.  having  been  duly  subpcBuaed  to  attend  at  the 
trial  of  the  said  action,  has  refused  [or  neglected]  to  attend 
in  conformity  to  such  subpoena ;  and  have  you  then  and 
there  this  precept. 

Given  under  the  hand  of  the  said  justice,  this 

day  of ,  18—.* 

J.  G.,  Justice. 


No.  1575. 
Minute  of  Conviction  of  Witness. 

(Code  Civ.  Pro.,  §  2976.) 

County,  ss.: 


Be  it  remembered,  that  on  the day  of ^ 

18—,  J.  S  ,  is  convicted  before  me,  having  been  brought 
before   me,  pursuant  to   a  warrant  of  attachment  issued 

against  him  pursuant  to  law^  and  fined  the  sum  of 

dollars,  besides dollars  costs  for  non-attendance  as 

a  witness  to  give  evidence  before  me  [or  before  R.  C,  Esq.^ 
one  of  the  justices  of  the  peace  of  said  county],  at  my  [or 
his]  dwelling-house,  in  the  town  of  Saratoga  Springs,  on  the 

«  As  to  punishment  of  witness,  see  Code  Civ.  Pro.,  §  2974. 


Justices'  Courts.  1403 

day  of ,  18 — ,  in  a  cause  tlien  and  there 

tiepending  before  me  [or  before  the  said  justice],  in  which. 
J.  C.  was  plaintiff  and  R.  G.  defendant.' 

J.  G.,  Justice. 


No.  1576. 
Execution  upon  Minute  of  Conviction. 

(Code  Civ.  Pro.,  §  2977.) 

County,  ss.: 

The  People  of  the  State  of  New  YorTc,  to  any  Constable  of 
said  County,  greeting  : 

Whereas,  J.  S.  was,  on  the day  of ,  18 — , 

convicted  and  fined  by  the  undersigned,  a  justice  of  the 
peace  in  and  for  the  said  county,  the  sura  of dol- 
lars, besides dollars  costs,  for  non-attendance  as 

a  witness,  to  give  evidence  before  the  said  justice,  at  his 

dwelling-house  in  the  town  of ,  in  said  county,  on 

the day  of ,  18 — ,  in  a  certain  cause  then 

and  there  depending  before  the  said  justice,  in  which  J.  C. 
was  plaintiff  and  R.  G.  defendant,  a  minute  of  which  con- 
viction, and  of  the  cause  thereof,  has  been  duly  made  up 
and  entered  in  the  docket  of  the  undersigned  ;  and, 

Whereas,  the  said  J.  S.  has  neglected  to  pay  the  said 
line  and  costs  \or  a  part  of  said  fine  and  costs  to  wit :  the 
sum  of dollars]  : 

You  are  hereby  required  to  collect  the  said  sum  remain- 
ing unpaid,  of  the  goods  and  chattels  of  the  said  J.  S., 

within  the  county  of ,  and,  for  want  thereof,  to 

take  him  and  convey  him  to  the  jail  of  the  said  county, 
there  to  remain  until  he  pays  that  sum,  not  exceeding  thirty 
days,  and  that  you  return  this  execution  within  sixty  days. 

Witness  my  hand  at  the  town  of ,  in  the  county 

of ,  on  this day  of ,  18 — . 

J.  G.,  J7istice  of  the  Peace. 


'  The  iniiiiite  is  deemed  a  jud^rment    paid,  by  ;;ection  2875  of  Code  Civ  Pra 
against  tlie  delinquent,  in  favor  of  llie    (§  2976,  id.) 
officer  to  whom  fines  are  directed  to  be 


1404  Forms  Eelating  to 


Article  Third. 

forms  relating  to  commission  to  take  testimony, 
issued  by  justice  of  the  peace. 

(Code  Civ.  Pro.,  Ch.  19,  Tit.  4,  Art.  3.) 

No.  1577.     Affidavit  to  obtain   commission   to  examine  witness  out  of  the 
county  of  the  justice. 

1578.  Notice  of  application  for  a  commission. 

1579.  Affidavit  of  service  of  notice.  No.  1578. 

1580.  Commission  to  examine  w^itness. 

1581.  Consent  of  parties  to  commission  for  examination  of  witness  upon 

oral  questions. 


No.  1577. 

Affidavit  to  Obtain  Commission  to  Examine  Witness  Out 
of  the  County  by  tlie  Justice. 

(Code  Civ.  Pro.,  §2980.) 

[Title  of  cause.] 
County,  ss.: 

A.  B.,  of ,  being  duly  sworn,  says,  that  he  is  the 

[plaintiff]  in  the  above  entitled  action  ;  that  the  defendant 
has  neglected  to  a|>[)ear  upon  the  return  of  the  summons  in 
said  action  [or  has  failed  to  answer  the  complaint  in  said 
action,  or  that  an  issue  of  fact  has  been  joined  in  said 
action]. 

That  M.  F.,  a  witness  who  is  not  within  the  county  of 
,  or  within  an  adjoining  county,'  is  material  in  the 

prosecution  [or  defense]  of  the  said  action. 

A.  B. 
[Jurat  as  in  form  No.  46.] 


No.  1578. 
Notice  of  Application  for  a  Commission. 

(Code  Civ.  Pro.,  §2982.) 

[Title  of  cause.] 

Sir— Take  notice,  that  an  application  for  a  commission  to 
be  directed  to  T.  N".,  Esq.,  of  the  [city]  of ,  to  ex- 

'  An  adjoining  county  to  the  one  mission  in  justice's  court,  Collins  v. 
where  the  action  is  pending-.  (Code  Shafler  (78  Hun,  512),  Dryer  v.  Sex- 
Civ.  Pro.,  §  2980.)   See,  also,  as  to  com-     smith  (40  Hun,  242). 


Justices'  Courts.  1405 

amine  J.  S.,  of  the  same  place,  a  witness  in  tlie  above  enti- 
tled cause,  upon  interrogatories  to  be  annexed  to  such 
commission,  will  be  made  to  J.  G.,  Esq.,  at  [his  dwelling- 
house],  in  the  town  of  ,  on   che day  of 

■ ,  18 — ,  at o'clock  in  the noon. 

Dated ,  18—.' 

J.  C,  Plaintiff, 

To  R.  F.,  Defendant  [or  C.  R.,  Attorney  for  R.  F.,  De- 
fendant\. 

No.  1579. 
AflBdavit  of  Service  of  Notice  (No.  1578). 

(Code  Civ.  Pro.,  §  2982.) 

County,  ss.: 


J,  D.,  of  ,  being  duly  sworn,  says,  that  on  the 

day  of ,  18 — ,'  he  served  a  notice,  of  which 


the  annexed  is  a  copy,  upon  R.  F.,  the  defendant  therein 
named,  by  delivering  the  same  to  him  [or  to  F.  H.,  his  at- 
torney], personally. 

J.  D. 
[Jurat  as  in  form  No.  46.] 


No.  1580. 
Commission  to  Examine  Witness. 

(Code  Civ.  Pro.,  ijg  2980,  2982,  2984,  2985.) 

County,  ss.  : 


To  T.  N.,  of  the  \city'\  of / 

Whereas,  it  appears  to  me,  the  undersigned,  a  justice  of 

the  peace  of  the  town  of ,  in  the  said  county,  by 

affidavit,  that  J.  S.,  of  tlie  s;iid  [city],  is  a  material  witness 
in  a  civil  action  now  pending  beforp  me.  nt  tlie  said  town  of 
,  between  J.  C,  plaintiff,  nnd  R.  G.,  defendant: 

Now,  therefore,  in  piirsnnnce  of  tlie  statute,  in  such  case 
made  and  provided,  I  have  appointed,  and  hereby  do  ap- 

'  This  notice  need  not  be  p^ven  un-        '  Six  days'  notice.     (Code  Civ.  Pro., 
less  issue  lias  been  joined.    (Code  Civ.     §  2983. ) 
Pro.,  §2982.) 


1406  Forms  Relating  to 

point,  you  commissioner  to  examine  the  said  witness,  and 
authorize  you  at  certain  days  and  places,  to  be  by  you  for 
that  purpose  appointed,  to  examine  the  said  witness  on 
the  interrogatories  hereto  annexed  [or  without  written  inter- 
rogatories, and  upon  oral  questions  to  be  put  to  the  witness 
when  he  is  produced],'  under  oatli,  to  be  taken  before  you, 
and  to  cause  such  examination  and  deposition  to  be  reduced 
to  writing,  and  certified  by  you,  and  to  return  the  same,  by 

mail,  addressed  to  me,  at  the  [town]  of ,  in  the 

county  of  ,  and  State  of  New  York,  according  to 

the  directions  hereunto  annexed." 

J.  G.,  Justice  of  the  Peace. 

[Annex  copy  of  section  901,  and,  it  would  seem,  of  sec- 
tion 902  of  the  Code  of  Civil  Procedure,  as  in  form  No.  382, 
except  that  subdivision  six  of  section  901  may  be  omitted. 
When  the  examination  is  to  be  taken  upon  oral  questions, 
section  900  of  the  Code  of  Civil  Procedure  must  be  annexed. 
Id.,  §2981.] 

Direction  for  Return. 

Let  the  within  commission  be  returned  through  the  post- 
office,  directed  to  me  at  the of ,  in  the 

county  of ,  and  State  of  New  York. 

J.  G.,  Justice  of  tlie  Peace. 


No.  1581. 

Consent  of  Parties  to  Commission  for  Examination  of  Wit- 
ness upon  Oral  Questions. 

(Code  Civ.  Pro.,  §  2981.) 

[Title  of  cause.] 

We  do  hereby  stipulate  and  consent,  pursuant  to  section 
2981  of  the  Code  of  Civil  Procedure,  that  a  commission  to 
be  granted  in  the  above  entitled  action,  as  prescribed  in 
article  third  of  title  fourth  of  chapter  nineteenth  of  the  said 
Code  may  issue  to  ,  of ,  in  the  State  of 


'  See  section  2981,  Code  Civ.  Pro.,  cross-interrogatories  and  notice  of  set- 
as  to  this  form  of  examination;  and  tlemcnt,  see  forms  Xos.  383,  384,  385,, 
agreement,  form  No.  1581,  and  see  and  see,  generally,  forms  Nos.  375, 
form  No.  387.  etc. ,  and  notes  thereto. 

'  For  forms  of  interrogatories  and 


Justices'  Courts.  1407 

,  to  examine  C.  D.,  of ,  in  said  State,  as  a 

witness  on  the  part  of  the ,  without  written  inter- 
rogatories, and  that  the  deposition  of  said  witness  may  be 
taken  upon  oral  questions.' 

Dated ,  18—. 

A.  B.,  Plaintiff 
[or  M.  N.,  Attorney  for  Plaintiff^. 

CD.,  Defendant 
[or  H.  J.,  Attorney  for  Defendanf]. 


TITLE  V. 

FORMS  RELATING  TO  TRIAL  AND  ITS  INCIDENTS. 

(Code  Civ.  Pro.,  Ch.  19,  Tit.  5.) 

No.  1583.  Venire. 

1583.  Constable's  return  to  venire. 

1584.  Oath  of  juror. 

1585.  Oath  of  witness. 

1586.  Warrant  of  commitment  of  witness  refusing  to  be  sworn,  etc 

1587.  Constable's  oath  to  keep  jury. 

1588.  Proceedings  to  impose  upon  and  collect  from  jurors  a  fine  for 

failure  to  attend  or  refusing  to  serve. 


No.  1582. 
Yeniro. 

(Code  Civ.  Pro.,  §§  3991,  2993.) 

Town  [or  City]  of ,  ) 

County,  f  ^^' ' 


The  People  of  the  State  of  New  York,  to  any  Constable 
of  the  said  County  of ,  greeting  : 

You  are  hereby  commanded  to  notif  \'  twelve  men  of  the 
town  [or  city]  of ,  qualified  fo  serve,  and  not  ex- 
empt from  serving,  as  trial  jurors  in  courts  of  record,  not  of 
kin  to  the  plaintiff  or  defendant  [or  to  notify  twelve  men 
of  the  county  of ,  qualified  to  sprve,  and  not  ex- 
empt from  serving  as  trial  jurois  in  courts  of  record,  and 
who  are  not  interested  in  tlie  matter  at  issue,  to  attend, 
etc.],  and  not  interested  in  the  action,  to  nttnnd  before  tlie 
undersigned,  a  justice  of  the  peace  of  said  town  [or  city], 

■  See,  uIho,  form  No.  ;JU3. 


1408  Forms  Kelating  to 

at  his  dwelling-liouse,  etc.,  in  said  town  [or  city],  on  tlie 

day  of ,  18 — ,  at o'clock  in  the 

noon,  to  form  a  jury  for  the  trial  of  a  civil  action, 

now  pending  before  me,  said  justice  of  the  peace,  between 
M.  F.,  plaintiff,  and  G.  H.,  defendant'  [or  between  the  town 

{or  city)  of ,  plaintiff,  and  the  town  {or  city)  of 

,  defendant]. 

Dated ,  18—. 

J.  Gt.,  Justice  of  the  Peace. 


No.  1583. 
Constable's  Return  to  Tenire. 

(Code  Civ.  Pro.,  §2993.) 

I  certify  that,  by  virtue  of  the  within  precept,  I  have  per- 
sonally summoned  as  jurors  the  several  persons  named  in 
the  annexed  list. 

Dated ,  18—. 

J.  G,,  Constable, 

[Annex  list  of  names  and  residences  of  jurors.] 


No.  1584. 
Oath  of  Jurors. 

(Code  Civ.  Pro.,  §2998.) 

You  do  solemnly  swear  [or  affirm]  that  you  will  well  and 
truly  try  the  matter  in  difference  between  A.  B.,  plaintiff, 
and  C,  D.,  defendant,  and,  unless  discharged  by  me,  a  true 
verdict  will  give,  according  to  the  evidence. 


No.  1585. 
Oath  of  Witness. 

(Code  Civ.  Pro.,  §3000.) 

You  do  solemnly  swear  [or  affirm],  that  the  evidence 
which  you  shall  give  relating  to  the  matter  in  difference  be- 
tween A.  B.,  plaintiff,  and  C.  D.,  defendant,  shall  be  the 
truth,  the  whole  truth  and  nothing  but  the  truth. 

*See  Becker  v.  Sitterly  (58  How.  Laws  of  1SS9,  and  Prussia  v.  Guen- 
Pr  38)  See  also,  amendments  to  ther  (16  Abb.  N.  C,  230).  Hortoii  v. 
§  2991    Code  Civ.  Pro.,  by  ch.  505   of    Hawkins   (20  Week.  Dig.,  17),  More- 


Justices'  Couets.  1409 

No.  1586. 

Warrant  of  Commitment  of  Witness  Refusing  to  be  Sworn, 

etc. 

(Code  Civ.  Pro.,  §3001.) 

Town  [or  City]  of 


County^  ^  ^^' 


The  People  of  the  State  of  New  York,  -to  any  Constable  of 

the  County  of ,  a7id  to  the  Sheriff  of  the  said 

County,  greeting: 

Whereas,  on  the  trial  of  a  civil  action  before  me,  the  said 
justice,  this  day,  between  A.  B.,  plaintiff,  and  C.  D.,  de- 
fendant, J.  S.,  being  called  as  a  witness  on  the  part  of  the 
said  plaintiff  [or  defendant],  and  attending  as  such  witness 
refused  to  be  sworn  or  affirmed  as  such  witness  in  the  form 
prescribed  by  law  [or  to  answer  on  his  examination  as  such 
witness  a  pertinent  and  proper  question  asked  of  him  by 
the  plaintiff,  to  wit :  whether  he  was  acquainted  with  the 
hand  writing  of  C.  D.,  or  neglected  {or  refused)  to  produce 
a  book  {or  paper)  which  he  had  been  duly  subpoenaed  to 
produce,  as  prescribed  in  section  2969  of  the  Code  of  Civil 
Procedure  {or  which  he  had  been  duly  required  to  produce 
by  an  order,  made  as  prescribed  in  section  867  of  tlie  Code 
of  Civil  Procedure),  to  wit  (describe  book,  or  paper)!.' 

And  the  said  plaintiff,  at  whose  instance  the  said  J.  S. 
attended  as  such  witness,  made  oath  before  me,  that  the 
testimony  of  said  witness  [or  that  the  said  book  {or  paper)] 
was  so  far  material  that  without  it  he  could  not  safely  pro- 
ceed with  the  trial  of  said  action,  and  it  having  been  duly 
proven  to  me,  by  the  oath  of  said  plaintiff  [or  defendant]  [or 
by  the  oath  of  J.  S.,  or  by  the  return  of  Y.  C,  one  of  tlie 
constables  of  said  county],  that  the  said  J.  S.  was  duly  sub- 
poenaed, etc. 

Now,  therefore,  you,  the  said  constnble.  are  hereby  com- 
manded forthwith  to  convey  the  said  J.  S.  into  tlip  ciisfody 
of  the  said  sheriff,  and  you,  the  said  slieriff,  are  hereby  re- 
quired to  receive  the  said  J.  S.  into  your  custody  in  tli«»  jail 
of  the  said  county,  and  liim  tliere  saft'ly  V<^oy>  and  rlosdy 
confine  until  he  shall  submit  to  be  sworn  or  affirmed  as  stjch 

head  v.  Brown    (:i7>   State  Rep.,  766),  Code  Civ.  Pro.  ;  Beluppi  v.  Uovey  (90 

Car^ain  v.  Evennt  (42  iil  ,  618),  Laws  Hiin,  186),  HhcM-inHn  v.  (treen  (ifl..4()2) 

of    1892,    ch.    .%7,    amendiriff   §2997,  '  Bee  cection  3002,  Code  Civ.  Pro 
177 


1410  FoKMs  Kelatiisu  to 

witness  as  aforesaid,  or  shall  be  otherwise  discharged,  ac- 
cording to  law  [or  until  he  shall  submit  to  answer  the  said 
question  so  put  to  him  by  the  said  (plaintiii")  (or  to  produce 
the  said  book,  oi'  paper)  or  be  otherwise  discharged,  accord- 
ing to  law]. 

Given  under  my  hand,  this day  of ,  18 — .' 

J.  G.,  Justice  of  the  Peace. 


No.  1587. 
Constable's  Oath  to  Keep  Jury. 

(Code  Civ.  Pro.,  $5  3006.) 

You  swear,  in  the  presence  of  Almighty  God,  that  you 
will,  to  the  utmost  of  your  ability,  keep  the  persons  sworn 
as  jurors  upon  this  trial  together,  in  a  private  and  conven- 
ient place,  without  any  meat  or  drink,  except  such  as  shall 
be  ordered  by  me  ;  that  you  will  not  suffer  any  communica- 
tion to  be  made  to  them,  orally  or  otherwise  ;  that  you  will 
not  communicate  with  them  yourself,  orally  or  otherwise, 
unless  by  my  order,  or  to  ask  them  whether  they  have  agreed 
upon  their  verdict,  until  they  are  discharged  ;  and  that  you 
will  not,  before  they  render  their  verdict,  communicate  to  any 
person  the  state  of  their  deliberations,  or  the  verdict  they 
have  agreed  upon.  2 

No.  1588. 

Proceedings  to  Impose  Upon  and  Collect  from  Jurors  a 
Fine  for  Failure  to  Attend  or  Refusing  to  Serve. 

(Code  Civ.  Pro.,  §3009.) 

See  forms  Nos.  1574-1576,  to  be  adapted  to  this  case. 


TITLE  YI. 

FORMS  RELATING  TO  JUDG^rENT.  AND  DOCKETING  THE  SAME. 
(Code  Civ.  Pro.,Ch.  19   Tit.  G.) 
No.  lf>«9.     Confession  of  jvidsrinent  before  justice  of  the  peace. 

1590.  .Tndtrment  upon  confession. 

1591.  Transcript  of  justice's  judjrment  for  recovery  of  money. 

1592.  Transcript  of  justice's  judgment  for  recovery  of  chattel. 

~  »See  Rutherford  v.  Holmes  (66  N.     78)7Grbbona  v.  Van  Alstyne  (29  State 
Y     368 ;  afF'g  S.  C,  5  Hun,  317).  Rep.,    461),     Seeley   v.   Bisgrove   (83 

'^  See  Valentine  V.  Kelley    (54    Hun,     Him,  293). 


Justices'  Courts.  1411 

No.  1589. 
Confession  of  Judgment  Before  Justice  of  the  Peace. 

(Code  Civ.  Pro.,  §§  3010,  3011.) 


A.  B.,  Plaintiff, 

agst. 
CD.,  Defendant. 


To  R.  C,  Esq.,  one  of  the  Justices  of  the  Peace  of  the  County 
of : 

I,  C.  D.,  of ,  do  hereby  confess  judgment  on  a 

demand  arising  upon  contract  [or  in  tort]  in  favor  of  A.  B., 

for  the  sum  of dollars,  besides  costs,  and  authorize 

you  to  enter  judgment  against  me  accordingly. 

Dated  at ; ,  in  said  county,  this  day  of 

,  18-. 

C.  D. 

In  presence  of  R.  C,  Justice. 

Filed  this day  of ,  18—. 

R.  C,  Justice. 
County,  ss.: 


We,  A.  B.,  of ,  and  C.  D.,  of ,  the  par- 
ties named  in  the  foregoing  {or  annexed]  confession  of  judg- 
ment, being  duly  sworn,  severally  say,  that  the  said  C.  D. 
is  honestly  and  justly  indebted  to  the  said  A.  B.,  in  the 

sum  of dollars,  over  and  above  all  just  demands 

which  the  said  C.  D.  has  against  the  said  A.  B.,  and  that 
the  above  \or  annexed]  confession  is  not  made  or  taken 
with  intent  to  defraud  any  creditor.^ 

A.  B. 
C.  D. 

[Jurat  as  in  form  No.  46.] 

We,  A.  B.  and  C.  D.,  the  plaintiff  and  defendant  above 

(lamed,  do  hereby  agree  that  the  issuing  of  execution  upon 

the  judgment  rendered  upon  the  above  confession  be  stayed 

for  [name  time].* 

Dated ,  18—. 

A.  B. 

C.  D. 

'  This  affidavit  is  to  be  annexed,  in     B>im  exceeding  fifty  dollars,      (('ode 
case  the  judfrnient  is  confessed  for  a     Civ.  Pro.,  .^  IJOl  1 .  siihd.  3.)    AstoefTect 


1412  Forms  Relating  to 

No.  ir/jo. 

Judgment  upon  Confession. 

(CodeCh.  Pro.,  §3015.) 

,  18- 


A.  B.,  Plaint ij^^ 

agst. 
CD.,  Defendant 


Parties  appear  [or  defendant  appears]  personally  before 
me,  and  judgment  entered  against  the  said  defendant  on  his 
confession,  in  writing,  on  a  demand  arising  ii^^on  contract 
[or  in  tort]  [accompanied  by  tlie  affidavit  of  the  defendant 
and  plaintiff,  as  required  by  the  statute] '  for 

Sum  confessed $75  00 

Costs  (specify  items)  •* 63 


$75  63 


Agreement  of  parties  filed,  pursuant  to  statute,  staying 
execution  for  [state  time]. 


No.  1591. 
Transcript  of  Justice's  Judgment  for  Recovery  of  Money. 

(Code  Civ.  Pro.,  §§  3017,  3021.) 

COUNTY— Justice's  Court. 


J.  H. 

agst. 
D.  G.  [AND  C.  M.]. 


-,  18-. 


Judgment  rendered  for  plaintiff  for  the  sum  of $49  64 

Costs lis 

$50  82 


Costs  of  copy  to  be  added. 

[The  defendant,  C.  M.,  was  not  summoned.'] 

["Defendant  liable  to  execution  against  his  person.'"] 


of  omission  of  affidavit,  see  Bodine  v.  Civ.  Pro.,  §  3011,  subd.  3.)     See  also, 
Walters  (20  Week.  Dig.,  132  ;  8.  C,  34  Putnam  v.  Van  Allen  (46  Hun,  492). 
Hun,  6),  and  see  section   3012,  Code        *  See,  section  3078,  Code  Civ.  Pro. 
Civ.  Pro.     See   also,  Crouse  v.  John-        'See   section   3021,  Code  Civ.  Pro., 
son  (65  Hun,  337),  Adams  v.  Tator  (57  and  as  to  justices'  judgments    gene- 
Hun,  302).  rally,  see  Tracy  v.  Frost  (32  State  R., 

^See,  as   to   stay  of  execution,  see-  907),  Rogers  v.  Edmonds  (28  id.,  749), 

tion  3010,  Code  Civ.  Pro..  Kusselewskey   v.  Fabricant  (8   Misc.^ 

=  Insert  this  statement  if  the  judg-  104),    Matter   of  Phelps   (6   id.,  397), 

ment  is  for  over  fifty  dollars.     (Code  Brown   v.    Hyman  (27   N.  Y.    Supp., 


Justices'  Courts.  1413 

County,  ss.: 

I  certify  that  the  above  is  a  transcript  from  my  docket  of 
a  judgment  therein  rendered  by  me  ;  that  I  have  compared 
the  same  with  the  original  and  that  it  is  a  true  transcript 
therefrom  and  of  the  whole  thereof.' 

D.  B.,  Justice. 

No.  1592. 

Transcript  of  Justice's  Judgiueut  for  Recovery  of  a 
Chattel. 

(Code  Civ.  Pro.,  §  3019.) 

[Title  of  cause  as  in  last  form.] 

Judgment  rendered  on  the day  of ,  18 — , 

for  [plaintiff]  for  a  chattel,  to  wit :  [describe  same],  which 
has  been  delivered  to  the  [defendant]  [or  w^hich  was  not 
replevied]. 

Value  of  chattel $60  00 

Damages 15  00 

Costs  (state  items); *  total 5  00 

$80  oa 

D.  B..  Justice  of  the  Peace. 
[Certificate  as  in  last  form,  No.  1.591.] 


TITLE  VII. 

FORMS  RELATING  TO  EXECUTIONS  IN  .JUSTICE'S  COURT. 

(Code  Civ.  Pro.,  Ch.  19,  Tit.  7.) 

No.  1593.  Justice's  execution,  u]3on  judirincnt  for  money, 

1594.  Renewal  of  execution. 

1595.  Constable's  notice  of  sale  under  justice's  execution. 

1596.  Indorsement  of  levy  upon  exccufion. 

1597.  Affidavit  of  debtor  to  ol)tain  disclinrtre  from  imprisonment  under 

justice's  execution. 

1598.  Execution  upon  justice's  judirmcnt  in  nctiuii  tor  a  cliitttel. 

1599.  Complaint  in  action  a^'ainst  constable  for  not  returning:  cxccutioa 

within  five  days  after  the  return  day. 

1600.  Execution  upon  justice's  judgment  docketed  with  county  clerk. 

436),  Laws  1894,  ch.  307,  amd'^'  §§  376,  °  ^w.  Bection  3018,  Code  Civ.  Pro. 

382,3017,    Code  Civ.    Pro;   IJ-Rrdsley  '  When  the  jud^'nieiit  is  docki'tcd  in 

v.    Pope    (88    Hun,    HtJU;,    Tousley    v.  lln;  coiuity  rItMk'H  ofHce  it  bi^conieH  a 

Mowers  (14  Mine,  12.0),   Hmilh  v.  Mc-  jmlffinetit    of   the    county    court  upon 

Millan  (90  Hun,  542),   Rich  v.    Mark-  which    an    action  may  be    brought  at 
ham  (92  Hun,  78). 


1414  Forms  Relating  to 

No.  1593. 
Justice's  Execution  upon  J  udgment  for  Money. 

(Code  Civ.  Pro.,  g§  3024,  3025,  3026.) 

The  People  of  the  State  of  Neio  York,  to  any  Constable  of 
the  County  of ,  greetiny  : 

Whereas,  on  the day  of ,  18—,  a  judg- 
ment was  rendered  by  the  undersigned,  a  justice  of  the 

peace  of  the  town  of ,  in  the  county  of ,  in 

favor  of  A.  M.,  plaintiff,  and  against  CD,,  defendant,  for 

the  sum  of dollars  damages  and dollars 

costs  ;  and. 

Whereas,   the  sum  of dollars  is  actually  due 

thereupon,  at  the  date  of  this  execution. 

[And,  whereas,  said  action  was  brought  to  recover  a  fine 
{or  penalty)  {or  state  other  cause  of  action,  so  as  to  bring 
the  case  within  section  2985  of  the  Code  of  Civil  Procedure, 
adding  when  the  case  is  specified  in  subdivision  three  of 
that  section,  as  follows :  in  which  an  order  of  arrest  was 
granted  and  was  executed).'] 

Now,  therefore,  you  are  hereby  required  to  satisfy  the 
said  judgment,  together  with  your  fees,  out  of  ["^J  the  per- 
sonal property  of  the  said  judgment  debtor  within  your 
county,  not  exempt  from  levy  and  sale  by  virtue  of  an  exe- 
cution, and  to  bring  the  money  before  me,  the  said  justice, 
by  the  return  day  of  this  execution,  to  be  rendered  by  me 
to  the  said  A.  M. 

[And  you  are  further  required,  if  sufficient  personal  prop- 
erty cannot  be  found  to  satisfy  the  said  judgment,  to  arrest 
the  said  judgment  debtor,  and  to  convey  him  to  the  jail  of 
said  county,  there  to  remain  until  he  pays  the  said  judg- 
ment, or  is  discharged  according  to  law.'] 

And  you  are  further  required,  to  return  this  execution 

to  me  within  sixty  days  after  its  date.* 

Dated ,  18—. 

J.  G.,  Justice  of  the  Peace. 

any  time  within  twenty  yeara.    (Spen-  words  "stating  the  particulars  thereof 

cerv.  Wait,  22  Week.  Dig.,  214.)    See,  in   section   8019.     The  provision  is  a 

also,  amendment  to  §  3017,  Code  Civ.  new  one. 

Pro.,  by  chap.  307  of  Laws  of  1894,  '  Insert  this  clause  in  case  of  execu- 

whereby  the  application  for  a  trans-  tion  against  the  perst)n.     (Code    Civ. 

cript  of  a  judgment   must   be    made  Pro.,    §  3026).      See,    also,    Winne    v. 

within  six  years  after  the  rendering  Houghtaling  (84  Hun,   166),  Farrelly 

thereof,  and  see  O'Reilly  v.  Block  (23  v.    Hubbard    (id.,   391),    Blakely    v. 

N.  Y.  Sunn.,  670),  Kingsford  v.  But-  Weaver  (46  id.,  174).  Farrelly  v.  Hub- 

ler  (71  Hun.  598).  bard  (148  N.  Y.,  592,  rev'g  84  Hun, 

*  It  may  l)e  safer  to  state  the  items  391). 
of   costs  in  the  transcript    under  the 


Justices'  Coukts. 


1415 


No.  1594. 
K3iiewal  of  Execution, 

(Code  Civ.  Pro.,  §  3027.) 

The  within  execution  is  renewed.' 

,  18—. 


If  a  part  has  been  collected  : 
The  within  execution  is  renewed  for  — 
maining  due  thereupon,  with  interest  from  this  date 
,  18—.* 


G.,  Justice,. 
—  dollars  re- 


J.  G.,  Justice. 


No.  1595. 


Constable's  Notice  of  Sale  Under  Justice's  Execution. 

(Code  Civ.  Pro.,  §  3029.) 

By  virtue  of  an  execution  [_ot  of  sundry  executions]  I 
have  seized  and  taken  one  mahogany  bureau,  etc.  [name  the 
articles  particularly],  the  goods  and  chattels  of  Richard  Roe, 
which  I  shall  expose  to  sale  at  public  vendue  [or  auction] 

to  the  highest  bidder,  on  the day  of ,  18 — , 

at o'clock  — .  M.,  at  the  [Columbian  hotel],  in  the 

[village]  of . 

Dated ,  18—.'' 


G.  C,  Constable. 


No.  1596. 
Indorsement  of  Levy  upon  Execution. 

(Code  Civ.  Pro.,  g3029.) 

On  The day  of ,  18—,  I  levied  upon  the 


*  See  Jones  v.  Newman  (21  Week. 
Dig.,  328),  Hampton  v.  Boylan  (46 
Hun,  151). 

Ah  to  indorsement  of  execution  in  an 
action  to  recover  a  penalty  (.r  forfeit- 
ui-e,  see  last  sentence  of  section  3026, 
Code  Civ.  Pro.,  and  Bee  form  No.  891. 

As  to  proceeiiings  under  execution 
against  the  perpon,  see  sections  3032- 
303G,  Code  Civ.  Pro.,  Ryan  v.  Parr  (40 
State  Rep.,  946). 

As  to  return  of  execution,  see  sec- 
tions 3027,  3031,  id.,  and  see  Hampton 
V.  Boylan  (nuj/ra). 


*  Each  indorsement  renews  the  exe- 
cution for  sixty  days  from  the  date 
thereof.     (Code  Civ.  Pro.,  §  3027.) 

The  execution  may  be  i^i.■^ued  or  re- 
newed by  the  justice  after  the  expira- 
tion of  his  term  of  oflice.     (Id  ) 

'  Where,  a  sheriff  has  levied  upon 
jiropeity  and  taken  it  into  his  i  osnes- 
sion,  a  constable,  holiling  a  nul)se(]uent 
execution  cannot  make  any  It-vy  upon 
it,  or  Hell  itKiil>jecl  to  the  Hherifl"'H  li'vy. 
(Seyiiioui*  v.  Newton,  17  linn,  3('.) 

See,  also.  First  Nat.  Hank  of  0«wego 
v.  Dun  (29  Hun,  B29),  Jones  Station- 


1416  Forms  Relating  to 

following  property  by  virtue  of  the  within  execution,  to  wit 
[describe  articles]. 

G.  C,  (Jonstable. 

No.  1597. 

Affidavit  of  Debtor  to  Obtain  Discharge  from  Imprison- 
ment under  Justice's  Execution. 

(Code  Civ.  Pro..  §  3033.) 

[Title  of  cause.] 
County,  ss.: 


A.  B.,  of ,  being  duly  sworn,  says,  that  on  the 

day  of ,  18 — ,  he  was  committed  to  the 


-county  jail  of  county  by  virtue  of  an  execution 

issued  by  R.  C,  justice  of  the  peace  for  the  town  of , 

in  the  count j^  of ,  to  M.  N.,  constable  of  said  county, 

upon  a  judgment  rendered  in  the  above  entitled  action,  in 
favor  of  said  plaintiff  against  this  deponent,  and  has  re- 
mained ever  since  in  custody,  by  virtue  of  said  execution, 
in  the  said  jail,  or  within  the  liberties  thereof,  to  wit :  for 
thirty  days  {or  for  sixty  days]. 

That  he  has  a  family  \or  that  he  has  no  family]  within 

the  State  of  New  York,  to  wit :  at  the  [city]  of , 

in  the  county  of ,  for  which  he  provides.' 

A.  B. 

[Jurat  as  in  form  No.  46.] 


No.  1598. 


Execution  upon  Justice's  Judgment  in  Action  for  a 
Chattel. 

(Code  Civ.  Pro.,  §3088.) 

Town  [or  City]  of 


County  of  r     .. 

The  People  of  the  State  of  New  York,  to  any  Constable  of 
the  said  County,  greeting : 

Whereas,  in  an  action  before  me,  the  undersigned  justice 


ery,  etc.,  Co.,  v.  Case  (26  Kans.,  209 ;  As  to  posting  the  notice  and  time  of 
S.  C,  40  Am.  R.,  310),  People  v.  Hall  sale,  see  section  3029,  Code  Civ.  Pro.; 
(31  Hun,  404).  and  see  further  as  to  sale  and  levy. 


Justices'  Courts.  1417 

of  the  peace  of  said  town,  in  which  A.  B.  was  plaintiff,  and 

C.  D.  was  defendant,  I  did,  on  the day  of 

18 — ,  render  judgment  that  the  plaintiff  recover  of  the  de- 
fendant the  possession  of  the  following  described  chattels, 
viz.  [describe  the  chattel  or  chattels  particularly]  [or  the 

sum  of dollars  if  possession  thereof  is  not  delivered 

to  the  plaintiff],  and,  also,  that  said  plaintiff  recover  from 

said  defendant  the  sum  of  dollars  damages,  and 

dollars  costs  ;  and, 

Whereas,  there  is  actually  due  thereon,  at  the  date  hereof, 

the  sum  of dollars,  for  said  damages  and  costs  [and 

the  further  sum  of dollars  and cents,  if  the 

said  chattels  are  not  delivered  to  the  said  j^laintiff :] 

Now,  therefore,  you  are  hereby  commanded  to  deliver  the 
possession  of  the  said  chattels,  if  found  within  your  county, 
to  the  said  plaintiff,  and  [in  case  the  said  chattels  cannot  be 

found  within  your  county  to  satisfy  the  said  sum  of 

dollars,  with  interest  thereon,  and  in  either  case]  to  also 
satisfy  the  said  damages  and  costs,  together  with  your  fees 
hereon,  out  of,  etc.  [conclude  as  in  form  ]S"o.  1593,  from  (*), 
omitting  the  clause  in  brackets].* 

Dated ,  18—. 

J.  G. ,  Justice,  of  the  Peace. 


No.  1599. 

Complaint  in  Action  against  ConstaMe  for  not  Returning 
Execution  within  Five  Days  after  the  Return  Day. 

(Code  Civ.  Pro.,  g  3039.) 

[Title  of  cause.] 

The  complaint  of  the  above  named  plaintiff  respectfully 

shows,  that  on  or  about  the day  of ,  18 — , 

at ,  the  defendant  being  a  constable  of  the  town  of 

Code  Civ.  Pro.,  §  3030,  and  seotions  not  upon  alh,  see  Code  Civ.  Pro.,  i^ 

therein  referred  to.  3020.  and  ff)rm  No.  1027. 

As  to  exempt  propertj^  sec  section  '  See  sections  3034-3037,  (Vulc  Civ 

3028,    Code    Civ.    Pro.,    and    sections  Pre,  as  in  ijrocccdings  upon  aflidavit, 

therein  referred  to.  it<-. 

As  to  indorsement  u]um  c.vcc  ution  ''  Hee,  also,  forms  No.s.  563,  564,  and 

in  case  of  joint  debtors,  when;  sum  notes  to  those  forms. 
mens  is  served  iijiom  one  or  more  but 

17a 


1418  Forms  Relating  to 

,  an  execution  was  duly  issued  by  R.  C,  a  justice 


of  that  town,  in  favor  of  the  plaintiff  and  against  one  R  D,, 
directed  to  any  constable  of  the  county  of ,  direct- 
ing and  requiring  hirn  to  levy  of  the  goods  and  chattels  of 
said  R.  D. ,  except  such  as  were  by  law  exempt  from  exe- 
cution,  to  satisfy  a  judgment  recovered  by  the  plaintiff 

against  said  R.  D.,  before  such  justice,  on  the day 

of ,  18 — ,  for dollars  and cents, 

and  to  bring  the  money  within  sixty  days  from  the  date 
thereof  before  such  justice,  to  render  to  the  plaintiff. 

That  such  execution  was,  on  the  said day  of 

,  .18 — ,  delivered  to  the  defendant  to  execute,  and 

the  defendant  neglected  to  return  the  same  within  five  days 
after  the  return  day  thereof,  whereby  he  became  indebted 
to  the  plaintiff  in  the  amount  of  the  said  execution  with 

interest  from  the day  of ,  18 — ,  when  the 

judgment  upon  which  it  was  issued  was  rendered,  pursuant 
to  the  provisions  of  sections  3039  of  the  Code  of  Civil  Pro- 
cedure. 

Wherefore  the  plaintiff  demands  judgment  against  the 

said  defendant  for  the  sum  of dollars,  with  costs 

of  this  action.* 

M.  G.,  Plaintiff^  s  Attorney. 
[Office  address."] 

[Verification  as  in  forms  Nos.  151,  etc.] 


No.  1600. 

Execution  upon  Justice's  Judgment  Docketed  with  County 

Clerk. 

(Code  Civ.  Pro.,  §  3043.) 

See  form  No.  557,  and  notes  thereto.* 

'  See  Curry  v.  Farley  (8  Daly,  228),         »  See  note  2  to  form  No.  122. 
Inman  v.  McNeil  (57  How.  Pr.,  151),         "See,  also,  Jones   v.    Newman   (21 
Jones  V.  Newman  (21  Week.,  328).  Week.   Dig,  328),  Townsend  v.  Tol- 

huret  (57  Hun,  40). 


Justices'  Courts.  1419 

TITLE  VIII. 

Article  First. 

forms  relating  to  appeals  generally  from  justice's 

JUDGMENT. 
(Code  Civ.  Pro.,  Ch.  19,  Tit.  8,  Art.  1.) 

No.  1601.  Notice  of  entry  of  judgment  to  limit  time  to  appeal. 

1602.  Notice  of  appeal  from  judgment  rendered  by  justice  of  the  peacse. 

1603.  Undertaking  to  stay  executiun  upon  judgment. 

1604.  Notice  to  respondent  of  delivery  of  undertaking. 

1605.  Justice's  return  upon  appeal  from  his  judgment. 

1606.  Judgment  of  reversal  on  appeal  from  justice's  judgment,  and  award 

of  restitution. 


No.  1601. 
Notice  of  Entry  of  Judgment  to  Limit  Time  to  Appeal. 

(Code  Civ.  Pro.,  §  3046.) 

[Title  of  cause.] 

Take  notice,  that  judgment  was  entered  in  the  above  en- 
titled action,  by  R.  C,  Esq.,  justice  of  the  peace  for  the 

town  of ,  in  the  county  of ,  in  favor  of  the 

plaintiff  and  against  the  defendant,  for dollars 

damages  and dollars  costs,  on  the  — day  of 


-,  18-. 


Yours,  etc., 

A.  B.,  Plaintiff, 


No.  1602. 

Notice  of  Appeal  from  Judf^ment  Rendered  by  a  Justice  of 

the  Peace. 

(Code  Civ.  Pro.,  §3046.) 

[Title  of  cause.] 

Take  notice,  that  the  [defendant]  appeals  to  the  [county 

court  of county]  from  the  judgment  rendered  by 

R.  C,  Esq.,  justice  of  the  peace  of  the- town  of ,  in 

the  county  of ,  in  the  above  entitled  action,  on  the 

flay  of ,  18—,  in  favor  of  the  plaintifT  and 

against  the  defendant,  for  tlie  sum  of dollai-s  and 

cents,  damages  and  costs  [and  that  defendant  de- 


1420  FoKMS  Relating  to 

mands  a  new  trial  of  said  action  in   the  said  appellate 
court],' 

Dated ,  18—. 

C.  I).,  Appellant 
[or  E.  F.,  Attorney  for  Appellant]. 
[Office  address."] 
To  R.  C,  Esq.,  Justice  of  the  Peace. 


No.  1603. 
Undertaking  to  Stay  Execntion  npon  Judgment. 

(Code  Civ.  Pro.,  ^  3050.) 

[Title  of  cause.] 

Whereas,  a  judgment  was  rendered  by  R.  C,  justice  of  the 

peace  of  the  town  of ,  in  the  county  of , 

on  the day  of ,  18 — ,  in  favor  of  the  above 

named  plaintiff  against   the   above   named  defendant  for 

dollars  and cents,  damages  and  costs  \or 

ioiv  the  recovery  of  a  chattel,  to  wit  (describe  chattel  i,  with 

damages  and  costs,  and  for  the  value  of  said  chattel 

in  case  a  delivery  thereof  cannot  be  had] ;  and, 

Whereas,  the  said  defendant  intends  to  appeal  from  the 
said  judgment  to  the  [county  court  of county] : 

Now,   therefore,   we,  E.  F.,   of [and  G.  H.,  of 

],'  do  hereby  [jointh^  and  severally]  undertake,  that 

if  the  said  appeal  is  dismissed,  or  if  judgment  is  rendered 
against  the  appellant  in  the  said  appellate  court,  and  an 
execution  issued  thereon  is  returned  wholly  or  partl}^  un- 
satisHed,  [*]  we  will  pay  the  amount  of  the  said  judgment, 
or  the  portion  thereof  remaining  unsatisfied,  not  exceeding 
the  sum  of dollars. ' 

\0r  as  above  to  (*),  and  from  thence  as  follows :  We  will 

»  See  Code  Civ.  Pro.,  §  3068  ;  Marsh  R.,  180),  Gilman  v,  Jenkins  (40  Hun, 

V.  Village  of  Lansingburgh  (31  Hun,  594),  Amos  v.  Bradley  (15  Week.  Dig., 

514),  Matteson  v.  Hall  (64  How.  Pr.,  262),  Kimball  v.  Rich  (20  State  Rej).. 

515),  Thorn  v.  Roods  (47  Hun,  433),  153),   McCarthy  v.  Crowley  (5  N.  Y. 

Mann  v.  Dennis  (20  State  Rep.,  195),  Supp.,  675),  Clark  v.  Snyder  (40  Hun, 

Dudley  v.  Brinckerhoff  (13  Civ.  Pro.  33(J),  Andrews  v,  Snyder  (6  Civ.  Pro, 

R.  62),  Green  v,  Waite  (33  id.,  191),  R.,    333),    Horr  v.  Seaton   (18  Week. 

Royce  v.  Gibbons  (50  Hun,  341),  Den-  Dig.,  510),   Garling  v,  Ladd  (27  Hun, 

nistonv.  Trimmer  (27 id.,  393).  Harvey  112),   Albert  Palmer  Co.  v   Dickinson 

V.  Van  Dyck  (66  How.  Pr.,  396),  Moore  (14    Week.    Dig.,    191),    Beuerlin   v. 

v.    Trimmer    (17    Civ.    Pro.    R.,    99),  Hodges  (31  State  Rep.,  759),  Chatfield 

Hinkley  v.  Troy,  etc..  Horse  R.  Co.  v.    Reynolds   (18  Civ.   Pio.  R.,   378), 

(42  Hun,  281),  Reynolds  v.  Swick  (35  Longrill   v.   Downey  (7  N.  Y.  Supp,, 

id.,  278),  Bates  v.  Gorman  (8  Civ.  Pro.  530),  Strawbridge  v.  Vandenburgh  (32 


Forms  Relating  to 


1420a 


state  Rep.,  493),  Brown  v.  Niagara 
Machine  Co.  (27  id.,  7U),  O'Reilly  v. 
Block  (23  N.  Y.  Supp.,  670),  Richanl- 
son  V.  Levi  (69  Hun,  432),  Page  v. 
Larrowe  (31  State  Rf'p.,  3.")),  Young' 
V.  Conklin  (3  Misc.,  122),  Poen  v.  Scott 
(4  id.,  603),  Killmer  v.  Messling  (70 
Hun,  582),  Merris  v.  Hunt  (71  id.,  483), 
ch.  383,  Laws  of  1893,  amd'g  §  3063, 
Code  Civ.  Pro.;  Bartlett  v.  Mudgett 
(75  Hun,  292),  Platz  v.  Burton  & 
Corey  Cider,  etc.,  Co.  (7  Misc.,  473), 
Halsey  v.  Hart  (85  Hun,  4tj),  Reid  v. 
Diefendorf  (87  id.,  40),  Kenney  v.  Liv- 
ery Stable  Keepers'  Ass'n  (89  id., 
190),  Frink  v.  Stevens  (88  id.,  283), 
De  Bevoise  v.  Ingalls  (id.,  186),  Gould 
v.  Patterson  (87  id.,  533),  Pierano  v. 
Menitt  (89  id.,  207  ;  aff'd  148  N.  Y., 
289),  Rhodes  v.  Carr  (88  Hun,  217), 
Shei  man  v.  Green  (90  Hun.  462).  Frost 
V.  Frost  (15  Misc.,  167),  Baum's  Cas- 
torine  Co.  v.  Thomas  (92  Hun,  1), 
Utter  V.  Nelligan  (id.,  185). 


'  See  note  2  to  form  No.  122. 

'  One  or  more  sureties.  (Code  Civ. 
Pro.,  §  3050.) 

*  At  least  one  hundred  dollars,  and 
not  less  than  twice  the  amount  of 
the  judgment.  (Code  Civ.  Pro., 
§  3050.) 

Where  the  only  signature  of  the 
sureties  was  at  the  end  of  the  jurat  to 
the  affidavit  of  justification,  but  their 
names  were  written  in  the  body  of  the 
instrument  as  the  persons  who  "  un- 
dertake," and  they  acknowledged  the 
execution  thereof  before  a  notary ; 
held,  that  the  signing  and  execution 
of  the  undertaking  were  sufficient. 
(Weisbi'od  v.  Marquardt,  8  Abb.  N.  C, 
243  [Brooklyn  City  Ct.,  Gen.  Tm.]). 

See,  also,  Ross  v.  Markham  (5  Civ. 
Pro.  R.,  81),  Slattery  v.  Haskin  (42 
Hun,  86),  Elson  v.  Murray  (27  Hun, 
536). 


Justices'  Courts.  1421 

pay  the  sum  fixed  by  the  said  Jadgment  as  the  value  of  the 

said  chattel,  to  wit :  the  said  sum  of dollars  (together 

with  the  damages  awarded  for  the  taking,  withholding  or 
detention  thereof).] 

E.  F. 

[G.  H]. 
[Acknowledgment,  etc.,  as  in  form  No.  1560.] 


No.  1604. 
Notice  to  Respondent  of  Deliyery  of  Undertaking. 

(Code  Civ.  Pro..  §  3051.) 

Please  take  notice,  that  an  undertaking,  of  which  the 
within  is  a  copy,  was  delivered  to  [M.  F.,  clerk  of]  J.  G., 
justice  of  the  peace  [o7'  filed  with  the  clerk  of  the  (name  of 
appellate  court)],'  on  the day  of ,  18 — . 


Dated ,  18—. 

To  C.  D.,  Respondent. 


A.  B.,  Appellant. 


No.  1605. 
Justice's  Return  upon  Appeal  from  His  Judgment. 

(Code  Civ.  Pro.,  §  3053.) 

[Title  of  cause.] 

To  the  County  Court  of County : 

In  pursuance  of  the  notice  of  appeal  hereto  annexed,  and 

which  was  served  upon  me,  on  the day  of , 

18 — ,  on  which  day  the  annexed  undertaking  was  also  de- 
livered to  me,  I,  D.  B.,  a  justice  of  the  peace  of  the  town  of 

,  in  said  county,  having  been  paid,  at  the  time  of 

such  service,  the  costs  in  such  action,  included  in  the  judg- 
ment, and  my  fee  of  two  dollars  for  making  this  return,  do 
hereby  return  [all  of  the  testimony,  ])i-oreedings  and  judg- 
ment in  the  action  in  the  said  noticn  mentioned],' as  foHows: 

'  See  as  to  ca.se8  in  which  tlie  fih'iit,'  trial  insert  here  a  description  of  the 

may  be  made  with  the  clerk  of  tlie  ap-  papers  nluriied  as  prcscrilicfl  in  section 

peliate  court,  .section  3052,  Coile  Civ.  8053.  (Vide  Civ.  Pr....  and  sec  C.anhier 

I'i'J  V.  Smilli  ,'2 Civ.  Pro.  K.  fBrownel.  420). 

*  In  the  case  of  a  demand  of  a  new  See,  also,  generally,   as  to  return. 


1422  FoKMS  Relating  to 

[Here  insert  all  the  proceedings,  including  the  evidence 
and  judgment,  unless  the  appellant  has,  in  the  notice  of 
appeal,  demanded  a  new  trial,  as  to  which  case  see  section 
3053,  Code  Civil  Procedure.] 

Dated ,  18—. 

J.  G.,  Justice  of  the  Peace, 

[Annex  notice  of  appeal  and  undertaking,  if  any  has  been 
delivered.]  

No.  160G. 

Judgment  of  Reversal  on  Appeal  from  Justice's  Judgment, 
and  Award  of  Restitution. 

(Code  Civ.  Pro.,  t^  3058.) 

See  form  No.  533,  and  note  1,  page  410.  to  that  form. 
See,  also,  Cushing  v.  Yanderbilt  (7  Daly,  612) ;  and  as  to 
setting  off  costs  against  the  sum  awarded,  see  section  3059  ; 
as  to  what  disbursements  may  be  allowed  upon  the  appeal, 
see  Code  of  Civil  Procedure,  §  3070  ;  and  further,  as  to  costs 
upon  appeal,  see  Combs  v.  Combs  (1  Civ.  Pro.  E,.,  298) ; 
Sherwood  v.  Travelers'  Ins.  Co.  of  Hartford  (3  Civ.  Pro.  R., 
281),  Atkin  v.  Pitcher  (31  Hun,  352) ;  Horning  v.  Smith 
(19  Civ.  Pro.  R.,  142),  and  cases  cited  in  note  2  to  form 
No.  IGIO  ;  Code  of  Civil  Procedure,  §§  3066,  3070,  3073) ; 
as  to  judgment  roll  on  determination  of  appeal,  see  id., 
§  3061. 


Article  Second. 


FORMS    RELATING    TO    APPEAL    FROM    JUSTICE'S    JUDGIMENT 

WHEN   A  NEW   TRIAL    IS    NOT   HAD    IN   THE   APPELLATE 

COURT. 

(Code  Civ.  Pro.,  Ch.  19,  Tit.  8,  Art.  2.) 

No.  1607.     Stipulation  of  defendant  for  reversal  on  appeal. 


No.  1607. 

Stipulation  of  Respondent  for  Reversal  on  Appeal. 

(Code  Civ.  Pro.,  §  3062.) 

[Title  of  cause.] 
It  is  hereby  stipulated,  that  the  judgment  appealed  from 

eections  3054-3056,  Code  Civ.  Pro.,  and    Aylesworth  v.  St.  John  (25  Hun,  156), 
Barber  v.   Stettheimer  (13  Hun,  198),     Brooks  v.  St.  John  (25  Hun,  540),  Flint 


Justices'  Coukts.  1423 

in  the  above  entitled  action  may  be  reversed,  with  five  dol- 
lars costs  and  disbursements  of  the  appeal. 

Dated —,  18—. 

A.  B.,  Respondent 

\or  C.  D.,  Attorney  for  Respondent], 

[Office  address.'] 


Article  Third. 

forms  relating  to  appeal  from  justice's  judgment  for 
a  new  trial  in  the  appellate  court. 

(Code  Civ.  Pro.,  Cli.  19,  Tit.  8,  Art.  3.) 

No.  1608.     Offer  of  judgment  on  appeal  from  money  judgment. 

1609.  Notice  to  respondent  of  acceptance  of  offer. 

1610.  Offer  of  judgment  after  case  is  deemed  at  issue  in  appellate  court. 


No.  1608. 
Offer  of  Judgment  on  Appeal  from  Money  Judgment. 

(Code  Civ.  Pro.,  §  3070.) 

COUNTY  COURT. 


A.  B.,  Respondent^ 

agst. 

C.  D.,  Appellant. 


Take  notice,  that  the  above  named  respondent  [or  appel- 
lant] hereby  offers  to  allow  judgment  to  be  rendered  in  the 
above  named  appellate  court,  in  the  above  entitled  action, 
in  favor  of  the  said  respondent  and  against  the  said  appel- 
lant \or  in  favor  of  the  said  appellant  and  against  the  said 

respondent]  for  the  sum  of dollars. 

Dated ,  18—. 

A.  B.  IRespondenf] 
[or  J.  F.,  Attorney  for  {Respondent)]. 
[Office  .address.'] 
To  C.  D.  [Appellant]  \or  E.  F.,  Attorney  for  {Appellant)]. 

V.  Gault  (15  Hun,  213).  Fritz  v.  Piilt/  33),  Sherman  v.  Green,  (00  id.,  462), 

(2  Civ.  Pro.  R..  142),  KWx^ht  v.  WUhoii  Rul.;  4i;  Gen.  RuI.-h  of  Pru.-. 

(55  lluii,  .'(59),  Viileiiliiie  v.  Kelh-y  (."14         Tim  icliirn  niiiHt  ho  uia*!*-,  Jiftcr  ti'n 

id.,   78)   liarociiiK^  v.  ll.arvfy  (•'•7  lil.,  ami  witli'm  thirty  dayH  frotn  tli<'nt'rvice 

36G),  GiljIionH  V.  Van  AJHtyin!  ('2'.tStat<!  of  tin;  notice  of  ap|i<^al,  and  th«  i>ay- 

Rep.,  461),   ArniHtrong  v.  Sanfoi-il   ((JO  nieiit  of  the  (xwta  an<l  fu«.     Code  Civ. 

Hun,  350),  Younf,'  v.  Conklin  (J  Mis.;.,  Pro.,  }  30.^3.) 

122),  ThompBon  v.  Sheridan  (80  lliiii,         '  See  note  2  U>  form  No.  122. 


1424  Forms  Relating  to 

No.  1609. 
Notice  to  Respondent,  etc.,  of  Acceptance  of  Offer. 

(Code  Civ.  Pro.,  §  3070.) 

[Title  as  in  last  form.] 

Sir— Take  notice,  that  the  appellant  [or  respondent]  above 
named  accepts  the  offer  of  the  above  named  respondent  [or 

appellant],  dated ,  18 — ,  to  allow  Judgment  to  be 

taken  in  the  above  named  appellate  court  in  the  above  enti- 
tled action  in  favor,  etc.  [as  in  last  form]. 

Yours,  etc., 

CD.,  Appellant 
[or  E.  F.,  Attorney  for  Appellant]. 
[Office  address."] 
To  A.  B,,  Respondent  [or  J.  F.,  Attorney  for  Respondent], 


No.  1610. 

Offer  of  Judgment  after  Case  is  Deemed  at  Issue  in  the 
Appellate  Court. 

(Code  Civ.  Pro.,  §3072.) 

[Title  of  cause  as  in  form  No.  1608.] 

Sir — Take  notice,  that  the  appellant  [or  the  resj)ondent] 
above  named  hereby  offers  to  allow  judgment  to  be  taken 
against  him,  in  the  above  entitled  action,  for  the  sum  of 
dollars  [or  for  the  recover}^  of  the  property  de- 
scribed as  follows,  to  wit  [describe  same],  with  costs  [or 

without  costs].' 

Yours,  etc., 
A.  B.  [or  C.  D.]  or  E.  F.,  Attorney  for  A.  B.  or  C.  D. 

[Office  address.'] 


TITLE  IX. 

FORMS  RELATING  TO  ACTION  OR   SPECIAL  PROCEEDING,  RE- 
LATING TO  AN  ANIMAL  STRAYING  UPON  THE  HIGHVTAY. 

(Code  Civ.  Pro.,  Ch.  19,  Tit.  10.) 

No.  1611.     Complaint  in  action  for  penalty  for  suffering  animals  to  run  at 
larcre  upon  highway. 

'  For  notice  of  acceptance  of  offer,  Hun,  234),  Kelly  v.  Bonesteel  (29  Hun, 

see  form  No.  1609.  546),  Earl  v.  Collins  (23  Week.  Dig., 

^  See  note   2  to  form  No.  122,  and  lOS),  Piuyn  v.  Lynch  (44  Hun,  587), 

see  amendment   to  §  3070,  Code  Civ.  Sheehan    v.    Buller  (24  Week.  Dig., 

Pro.,  by  ch.  356  of  Laws  of  1895.     See,  168),  Balcom  v.  Terwilliger  (42  Hun, 

also,    Vanderwerken    v.    Brown    (38  170),  Munson  v.  Curtis  (43  id.,  214), 


Justices'  Courts.  1425 

No.  1612.     Petition  for  final  order  directing  sale  of  animals  seized  when  run- 
ning  at  large,  etc. ,  on  street,  highway,  etc. 

1613.  Precept  upon  petition  (form  No.  1612). 

1614.  Final  order  directing  sale  of  animals. 

1615.  Warrant  for  sale  of  animals  seized. 

1616.  Notice  of   claim  to  surplus  of  the  proceeds  of  sale  of  animals 

seized. 

1617.  Verdict  of  jury  in  favor  of  party  answering. 

1618.  Final  order  upon  verdict. 

1619.  Warrant  upon  final  order  (form  No.  1618). 

1620.  Undertaking  on  appeal  from  final  order. 


No.  1611. 

Complaint  in  Action  for  a  Penalty  for  Suffering  Animals 
to  Run  at  Large. 

(Code  Civ.  Pro.,  §3082.) 

As  in  form  No.  890,  inserting  therein  as  follows :  Tliat 

the  plaintiff  is  a  resident  of  the  town  of [or  is  the 

overseer  {or  superintendent  of  the  poor  of  the  town  of 
,  etc.)],  so  as  to  bring  the  action  Avithin  the  pro- 
visions of  section  3082  of  the  Code  of  Civil  Procedure.' 


No.  1612. 

Petition  for  Final  Order  Directing  Sale  of  Animals  Seized 
-  when  Running  at  Large,  etc.,  in  Highway,  Street,  etc. 

(Code  Civ.  Pro.,  §3086.) 

To  J.  G.,  Esq.,  Justice  0/  the  Peace  of  the  town  of , 

in  the  County  of : 

The  petition  of  A.  B.,  of ,  respectfully  shows: 

[That  he  is  the  overseer  of  highways  of  the  road  district 

(describing  it)  [or  the  street  commissioner  of  the  village  of 

),  in  the  said  town  of — ).'] 

Hollenbeck    v.   Knajp   (42  id..  207),  required  must  be  indorsed  upon,  and 

ZoUer  v.  Smith  (45  id.,  319),   Adolph  not   stated   in,  the  Ixxly  of  the  Bum- 

V.  De  Ceu  (id.,  130),  Watson  v.   Benz  mons.      (Scbooninaker    v.    Brook.s,  'J4 

(.57  llun,  S'JS),  Ilanliuf,'  v.  Ellston  (13  Hun,  55:}.) 

N.    Y.  Siipj).,  199),    Wat.son  v.    Benz  The  term  "lun    at  lar^o,"  implios 

(34    State    Rep.,    327),    McKu.slcie    v.  ])errni.'<i-i()ii  oi- us-sf-nt,  or,  ut  ii-a.^t,  .^uino 

Hendrickson  (128  N.  Y.,  X):k)),   Vi«f,'(^l  fault   or   \\^'^\wX   on    the    i)ait  of  tho 

V.  Schlueter  (73  Ilun,   595),  iShininan  owner  of  tlio  aniinalH,   and  whtiu  they 

V.  Khisler  (tj   MIhc,.,  203),    PicrHiu)  v.  CHcape,  afttT  duo  prt-cantion  to  fwoin-o 

MeiTilt(148  N.  Y.,  2S9;  uff'^cS.  C,  89  them  and  Ihn  owner  nuikc-i  ininiediatt* 

Hun,207),  RhodeH  V.  Ciirr  (88  id.,  217),  effortu  to  rec'over  Ihnnr,  (Imy  aio  not 

South.'ii-d  v.  B(M']cer(ir)  Minn  ,  43G),  ninninf^  at  larj^o  wilhin  tli«  nicaniiiff 

'  The  BiiirjUioriH  in  an  aclion  lironf^ht  of  till"  tentli  of  chapter  nineteenth  of 

under  nection  3082  of  CoiJe  Civ.  Pro.,  Code  Civ.  Pro.     (CileM  v.  BiirneH,  21 

rauBt  conform  to  Bection  1897  of  that  Hun,  240.) 

statute,  and  the  memoraudum  thereby  *  Tho  Beiziire  may  lie  niaihi  l)y,  and 


142G  Forms  Relating  to 

That  on  the day  of ,  IS — ,  certain  ani- 
mals to  wit  [briefly  describing  them],  were  found  by  him 
running  at  hirge  [or  being  herded  {or  pastured)]  in  a  public 

street,  to  wit : street  [or  highway,  or  park,  or  place, 

stating  what  highway,  etc.],  of  the  village  [or  town]  of 
,  in  the  county  of [bordering  upon  real  prop- 
erty owned  (or  occupied)  by  your  petitioner  ;  or  then  tres- 
passing upon  real  property  owned  (and  occupied)  (or  occu- 
pied) by  your  petitioner,  having  entered  thereupon  from  a 
public  street  {or  highway,  or  park,  or  place)  of  the  village 

{or  town)  of ,  in  the  county  of ],'  and  that 

said  animals  were  thereupon  immediately  seized  by  your 
petitioner,  and  are  now  in  his  possession. 

That  the  name  of  the  owner  of  said  animals  is  C.  D.,  who 

resides  in  the  town  of ,  in  the  county  of 

[or  that  the  name  of  the  owner  of  the  said  animals  is  un- 
known to  your  petitioner,  and  cannot  be  ascertained  by 
him  with  reasonable  diligence]. 

[That  the  amount  of  damages  sustained  by  your  peti- 
tioner, by  reason  of  the  said  trespass,  is dollars.*] 

And  your  petitioner  prays  for  a  final  order,  directing  the 
sale  of  the  said  animals  so  seized  by  him,  and  the  applica- 
tion of  the  proceeds  thereof,  as  prescribed  in  title  tenth  of 
chapter  nineteenth  of  the  Code  of  Civil  Procedure." 

Dated ,  18—. 

A.  B. 
[Verification  as  in  form  No,  52.] 


No.  1613. 
Precept  upon  Petition  (form  No.  1612). 

(Code  Civ.  Pro.,  §  3087.) 

The  People  of  the  State  of  New  Yorlc,  to  C.  D.  [or  to  all 
persons  Tiamng  any  interest  in  the  animals  seized  as 
hereinafter  7nentioned'\ : 
Whereas,  A.  B.,  of [describing  official  capacity, 

the  proceedings  taken  by,  the  officers  '  Insert  these  statements  where  the 

named  (Code  Civ.  Pro. ,  §  3084),  or,  in  proceeding  is  taken  by  a  private  per- 

certain  cases,  by  a  private  person  (id.,  son.     (Code  Civ.  Pro.,  §  3085.) 

3085).  '  See  notes  to  form  No.  1611. 


Justices'  Courts.  1427 

if  any,  of  petitioner],  did,  on  the ,  18—,  present  to 

me,  a  justice  of  the  peace  of  the  town  of ,  in  the 

county  of ,  his  written  petition,  verilied  by  his  oath, 

the  substance  of  which  petition  is  as  follows  [state  the  sub- 
stance of  petition,  describing  the  animals  seized],  praying 
for  a  final  order,  etc.  [reciting  prayer  of  petition] :  [*] 

Now,  therefore,  you  are  lierebj^  required  to  show  cause 

before  me,  at  [my  office]  in  the  town  of ,  in  the 

county  of ,  on  the day  of ,  18 — , 

at o'clock  in  the noon,  why  the  prayer  of 

the  said  petition  should  not  be  granted,' 

Dated ,  18—. 

J.  Gr.,  Justice  of  the  Peace. 

To  E.  F.,  an  Elector  of  the  Town  of ,  in  the  County 

of / 

You  are  hereby  authorized  to  serve  the  within  precept  in 
manner  required  by  law.' 

Dated ,  18—. 

J.  G.,  Justice  of  the  Peace. 


No.  1614. 
Final  Order  Directing  Sale  of  Animals  Seized. 

(Code  Civ.  Pro.,  §3091.) 

JUSTICE'S  COURT. 

In  the  Matter  of  the  Petition 
of  a.  b.  for  sale  of  animals 
seized  by  him  [as,  stating  offi- 
CIAL CAPACITY,  IF  any],  AND 
APPLICATION  OF  THE  PROCEEDS 
THEREOF,  PURSUANT  TO  TITLE 
TENTH    OF    CHAPTER    NINETEENTH 

OF    THE    Code    of    Civil    Pro- 
cedure. 

As  in  last  form,  No.  1613,  to  [*],  and  from  thence  as  fol- 
lows: And,  whereas,  a  precept  wms  issued,  uiidei-  my  li:ni<l, 

'  As  to  manner  of  .scrvifc  of  prfrrpt     'M)'t*,'>^,  Code  Civ.  I'm. ;  imd  sec  scclion 
and  by  whom  to  be  mude,  see  section    2910,  id.,  tiierein  referred  to,  and  form 


Before  J.  G.,  a  Justice  of 
tlie  Peace  of  the  tmon  of 
,  in  tlis  county 


of- 


1428  FOKMS   F.ELATING   TO 

upon  the  presentation  of  the  said  i)etition,  on  the • 

day  of ,  18 — ,  directed,  etc,   [state  how  directed], 

brietiy  reciting  the  substance  of  the  said  petition  :  describ- 
ing the  animals  so  seized,  and  requiring  the  said  i)erson  [or 
persons]  to  whom  the  said  precept  was  directed  to  show 
cause  before  me,  at,  etc.,  on,  etc.,  why  the  prayer  of  the 
said  petition  shouki  not  be  granted  ;  and, 

Wliereas,  at  the  time  and  place  where  the  said  precept 
"was  returnable  as  aforesaid,  and  at  the  expiration  of  the 
time  specified  in  section  2893  of  the  Code  of  Civil  Procedure, 
the  petitioner  having  furnished  due  proof  of  the  service  of 
the  said  precept,  as  required  by  law  ;  and, 

Whereas,  said  C.  D.,  the  owner  of  said  animals  seized  [or 
E.  F.,  a  person  having  an  interest  in  said  animals  seized], 
appeared  upon  the  return  of  said  precept  [by  G.  H.,  his  at- 
torney], and  filed  a  written  answer,  subscribed  by  him  [or 
by  his  said  attorney],  and  verilied  by  his  oath  [or  by  the 
oath  of  his  said  attorney],  denying,  absolutely  or  upon  in- 
formation and  belief,  one  or  more  material  allegations  con- 
tained in  tlie  said  petition,  and  [state  further  proceedings] 
[or  no  person  having  appeared  and  answered  upon  the  re- 
turn of  said  i:)recept]  ;  and, 

Whereas,  the  decision  of  the  said  justice  [or  the  verdict 
of  said  jury]  was  in  favor  of  the  said  petitioner : 

Now,  therefore,  I  do  hereby  order,  that  the  said  animals 

seized  be  sold,  and  that  the  proceeds  of  the  sale  thereof  be 

applied  as  prescribed  in  title  tenth  of  chapter  nineteenth  of 

the  Code  of  Civil  Procedure. 

Dated ,  18—. 

J.  G.,  Justice  of  the  Peace. 


No.  1615. 
Warrant  for  Sale  of  Animals  Seized. 

(Code  Civ.  Pro.,  §3091.) 

The  People  of  the  State  of  New  York,  to  any  Constable  of 

the  County  of ,  greeting  : 

Whereas,  a  final  order  was  made,  pursuant  to  law,  on  the 

No.  1552.     As  to  proof  of  service,  see        For  proceedings  upon  return  of  pre- 
section  3089,  id.  cept,  see  Code  Civ.  Pro.,  §  3090. 


Justices'  Coukts.  142^ 

day  of ,  18 — ,  by  the  undersigned,  a  justice 

of  the  peace  of  the  town  of ,  in  the  county  of , 


in  a  special  proceeding  pending  before  him,  upon  the  peti- 
tion of  A.  B.  [state  official  capacity,  if  any],  made  pursuant 
to  title  tenth  of  chapter  nineteenth  of  the  Code  of  Civil  Pro- 
cedure, whereby  a  sale  was  directed  of  the  animals  seized 
by  said  A.  B.  [as  such,  etc.],  to  wit  [describe  the  animals], 
and  the  application  of  the  proceeds  of  such  sale  as  required 
by  the  provisions  of  the  said  title  : 

Now,  therefore,  you  are  hereby  commanded,  pursuant  to 
law,  to  sell  the  said  animals,  so  seized,  at  public  auction, 
for  the  best  price  which  you  can  obtain  therefor,  and  to 
make  return  thereof  to  me,  at,  etc.,  on,  etc' 

Dated ,  18—. 

J.  G. ,  Justice  of  the  Peace. 


•) 


No.  1616. 


Notice  of  Claim  to  Surplus  of  the  Proceeds  of  Sale  of  Ani- 
mals Seized. 

(Code  Civ.  Pro.,  §3093.) 

[Title  of  proceeding  as  in  form  No.  1614.] 

Notice  is  hereby  given  that  the  undersigned  claims  the 
surplus  of  the  proceeds  of  the  sale  of  the  animals  seized  in 
the  above  entitled  proceeding  \or  state  part  of  surplus 
claimed].' 

Dated ,  18—. 

CD. 

To  J.  G.,  Esq.,  Justice  of  the  Peace. 


No.  1617. 
Terdict  of  Jury  in  Favor  of  Party  Answering. 

(Code  Civ.  Pro.,  i?  3096.) 

The  jury  find  in  favor  of  C.  D.,  and  hereby  fix  the  value 
of  eacli  animal  seized,  as  follows  [state  se])arnf»-ly  each  ani- 
mal and  its  value]  ;  and  the  jury  fuitlier  find  tli.-it  tlie  seizure 


'  Not  less  than  ten  nor  more  than  The  sale  Is  to  be  made  upon  the  liko 
twenty  days  thereafter.  (Code  Civ.  notice  and  in  like  niatiner  as  a  sale  of 
Pro.,  ^  3091.)  j)roperty   by   virtue  of  an   execwtioB 


1430  Forms  Relating  to 

of  said  animals  was  malicious,  and  without  probable  cause, 
and  assess  the  damages  sustained  by  the  said  C.  D.,  by 
means  of  the  said  seizure  and  detention,  at dollars. 


No.  1618. 
Final  Order  Upon  Yerdict. 

(Code  Civ.  Fro.,  §  3096.) 

It  is  hereby  ordered,  pursuant  to  the  verdict  of  the  jury, 
that  the  return  of  the  animals  seized,  to  wit  [describe  them], 
or  the  value  of  the  said  animals,  as  fixed  by  said  verdict, 

to  wit :  the  sum  of ,  if  a  return  thereof  cannot  be 

had,  together  with  the  costs  of  said  C.  D.,  to  wit :  the  sum 

of dollars  [and dollars  damages],'  be  and 

hereby  is  awarded  to  C.  D.  against  the  petitioner,  A.  B. 


No.  1619. 
Warrant  upon  Final  Order  (form  No.  1618). 

(Code  Civ.  Pro.,  §3096.) 

Tlie  People  of  the  State  of  New  York,  to  any  Constable  of 
the  County  of ,  greeting  : 

Whereas,  a  final  order  was  made  by  the  undersigned,  a 

justice  of  the  peace  of  the  town  of ,  in  the  county 

of  ,  on  the day  of ,  18 — ,  in  a 

special  proceeding  upon  the  petition  of  A.  B.,  made  to  me, 
pursuant  to  title  tenth  of  chapter  nineteenth  of  the  Code  of 
Civil  Procedure,  awarding  to  C.  D.,  the  return  of  the  ani- 
mals described  as  follows,  to  wit  [describing  same],  or  the 

value  of  the  said  animals,  to  wit,  the  sum  of ,  if  a 

return' could  not  be  had,  and  the  payment  by  said  A.  B.  to 

said  C.  D.  of  the  sum  of damages  and  

dollars  costs ;  and. 

Whereas,  the  sum  of dollars,  with  interest  there- 


issued  by  a  justice  of  the  peace.    (See  to  surplus,  Code  Civ.  Pro..  §§  3093- 

form  of  notice,  form  No.  1595.)  3095. 

As  to  application  hy  justice  of  the        »  State  damages  at  double  the  amount 

proceeds  of  sale,  see  Code  Civ.  Pro.,  awarded  by  the  verdict.     (Code  Civ. 

g3093.  Pro.,  §3096.) 

'  See  for  further  proceedin.<]i:s  relating 


Justices'  Courts.  1431 

upon  from  the day  of ,  18—,  is  actually 

due  thereon  at  the  date  hereof,  for  said  damages  and  costs, 

and  tlie  further  sum  of dollars  and cents 

with  interest,  etc.,  is  aiso  actually  due  thereon,  at  the  date 
hereof,  if  the  possession  of  said  chattel  is  not  delivered  to 
said  iDlaintiff : 

Now,  therefore,  you  are  hereby  commanded  to  deliver  the 
said  animals  to  the  said  C.  D.,  if  found  within  your  county, 

and  to  satisfy  the  said  sum  of dollars  and 

cents,  damages  and  costs,  with  interest  as  aforesaid,  and  the 

further  sum  of dollars  and cents,  with  inter- 

<?st  thereupon  as  aforesaid,  if  the  said  animals  cannot  be 
found  within  your  county,  together  with  your  fees  thereon, 
out  of,  etc.  [conclude  as  in  form  No,  1598  from  C^)]. 

Dated ,  18—. 

J.  G.,  Justice  of  the  Peace, 


No.  1620. 
Undertaking  on  Appeal  from  Final  Order. 

{Code  Civ.  Pro.,  §3105.) 

[Title  of  proceeding  as  in  form  No.  1614.] 

Whereas,  a  final  order  was  made  by  J.  G.,  a  justice  of 

the  peace  of  the  town  of ,  in  the  county  of , 

in  the  above  entitled  proceeding,  on  the day  of 

,  18 — ,  by  which  it  was  ordered,  etc.  [state  substance 

of  the  order]  ;  and. 

Whereas,  the  said  C.  D.  intends  to  appeal  therefrom  to 
the  [county  court  of  the  county  of ] : 

Now,  therefore,  etc.  [conclude  as  in  form  No.  1603,  adding 
as  follows :  And,  also,  that  if  the  said  final  order  api)ealed 
frrjm  is  afhrnied,  or  if  the  said  appeal  is  dismissed,  the  appel- 
lant will  pay  all  sums  which  the  justice  awards  against  him, 
upon  the  hearing,  aftei-  tlie  detei-minntion  of  tlie  snid  ai)])eal 
as  prescribed  in  section  3106  of  the  ('ode  of  Civil  Procedure, 
not  exceeding  the  sum  of dollars.] 

Dated ,  18—. 

E.  F. 

|C.  \\.\ 
[Acknowledgment,  etc.,  as  in  invm  No.  1.148.1 


1432  Forms  Relating  to 

TITLE  X  . 

FORMS  RELATING  TO  MISCELLANEOUS  PROVISIONS. 
(Code  Civ.  Pro.,  Ch.  19,  Tit.  13..) 

No.  1621.     Transfer  of  actioa  wtien  justice's  term  expires,  etc. 

1622.  Affidavit  when  justice  is  a  witness  to  obtain  order  for  transfer  of 

action,  etc. 

1623.  Order  upon  foregoing  afiBdavit. 


No.  1621. 

Transfer  of  Action  when  Justice's  Term  Expires,  etc. 

(Code  Civ.  Pro.,  g  3150.) 

[Title  of  cause  or  proceeding.  ] 

Whereas,  I,  J.  G.,  a  justice  of  tlie  peace  of  the  town  [or 

city]  of ,  in  the  county  of ,  am  about  to 

remove  from  the  said  town  [or  city]  before  judgment  is  ren- 
dered in  the  above  entitled  action  [or  before  a  final  order  is 
made  in  the  above  entitled  proceeding]  pending  before  me : 

[Or  whereas,  the  term  of  office  of  the  undersigned,  J.  G., 
justice,  etc.  (as  above),  is  about  to  expire  before  judgment, 
etc.  (as  above).] 

Now,  therefore,  I  do  hereby  order  and  direct  that  the  said 
action  [or  proceeding]  be  continued  before  M.  P.,  Esq.,  a 
justice  of  the  peace  of  the  said  town  [or  citj]  of . 

Dated ,  18—. 

J.  G.,  Justice  of  the  Peace. 


No.  1622. 

Affidavit  when  Justice's  is  a  Witness  to  Obtain  Order  for 
Transfer  of  Action,  etc. 

(Code  Civ.  Pro.,  §  3151.) 

JUSTICE'S  COURT, County,  ss.: 


James  Jackson 

agst. 
Richard  Roe. 


Richard  Roe,  of ,  being  duly  sworn,  says,  that 

he  is  the  defendant  in  the  above  entitled  action  [or  that  he 


Justices'  Courts.  1433 

is  the  attorney  for  the  defendant  in  the  above  entitled  ac- 
tion, and  that  the  defendant  has  not  been  arrested  therein]. 

That  an  issue  of  fact  has  not  been  joined  in  said  action. 

That  J.  G.,  Esq.,  the  justice  of  the  j)eace  before  wliom 
the  said  action  is  pending,  is  a  material  witneds  for  this  de- 
ponent \or  for  the  defendant]  in  the  said  cause,  and  that  he 
cannot  safely  proceed  to  the  trial  thereof  without  the  testi- 
mony of  the  said  justice. 

And  this  deponent  further  says,  that  he  expects  to  prove, 
bj"  the  said  justice,  the  following  facts  and  circumstances, 
to  wit :  That  before  the  commencement  of  the  said  action, 
the  plaintiff  sued  the  defendant  before  the  said  justice,  for 
the  same  identical  prop^^rty  for  which  he  now  claims  the 
surplus  money,  and  that  judgment  was  passed  on  the  same 
and  entered  in  favor  of  the  defendant  and  against  the  plain- 
tiff for  costs  ;  and  also  that  the  plaintiff  acknowledged,  in  the 
presence  of  the  justice,  that  the  defendant  had  tendered  to 
him,  said  plaintiff,  the  overplus  money  before  the  com- 
mencement of  the  former  suit,  and  tliat  he  had  no  claim  for 
surplus  moneys  ;  and  this  defendant  does  not  know  of  any 
other  person  by  whom  he  can  prove  these  facts,  except  by 
one  J.  S.,  who  is  now  absent  from  the  said  county,  and 
without  the  jurisdiction  of  this  court,  and  is  not  expected 
to  return  in  several  months. 

\0r  if  the  action  be  for  trespass  on  land,  state  after  the 
words  "in  the  presence  of  the  said  justice,"  as  follows: 
That  he,  the  said  plaintiff,  gave  this  deponent  liberty  to 
enter  upon  the  premises  of  the  said  plaintiff,  described  in 
the  said  plaintiff's  complaint,  but  that  he,  this  deponent, 
had  acted  unfairly,  and  he,  the  said  plaintiff,  meant  to  make 
him  suffer  for  it  (set  forth  the  facts  and  circumstances  par- 
ticularly, according  to  the  facts).] 

KICHARD  ROE. 

[Jurat  as  in  form  No.  46.] 


No.  1623.     " 
Order  upon  Foregoing  Affidavit. 

(Code  Civ.  Pro.,  g  3151.) 

[Title  of  cause,  etc.] 

Whereas,  satisfact(n*y  i)roof,  by  aflidavit,  has  Ihmii  ])re 
180 


1434  Forms  Relating  to 

sented  to  me,  before  the  joinder  of  issue  in  the  above  enti- 
tled action  [or  proceeding]  by  the  above  named  defendant 
[or  by  G.  H.,  attorney  for  the  defendant  in  the  above  enti- 
tled action,  in  which  the  defendant  has  not  been  arrested], 
that  I,  the  undersigned,  a  justice  of  the  peace  of  the  town 
[or  city]  of ,  in  the  county  of ,  am  a  mate- 
rial witness  for  the  said  defendant,  without  whose  testimony 
he  cannot  safely  proceed  to  trial : 
Now,  therefore,  I  do,  etc.  [conclude  as  in  form  No.  1621]. 


Surrogates'  Courts. 


1334a 


sale  of  such  real  estate  see  section  2751 
id.,  as  amended  by  ch.  423  of  Laws 
of  18S7. 

'  See  Bubd.  1  of  section  2752,  Code 
Civ.  Pro.,  as  amended  by  ch.  735  of 
Laws  of  1894,  as  to  persons  holding- 
judgment  liens  against  decedent  dock- 


eted befoi-e  his  decease, 

^See  subd.  1  of  section  2752,  Code 
Civ.  Pro.,  as  to  funeral  expenses,  and 
see  section  2749  (id.).  In  re  Erlacher 
(3Redf.,  8),  In  re  Mount  (id.,  9  n.). 
In  re  Wood  (id.,  9  n.).  In  re  Rodney 
(id.,  15),  Owens  v.  Bloomer  (14  Hun, 


Costs,  etc. 


1435 


CHAPTER  XX. 

FORMS   RELATING   TO   COSTS,  ETC. 

(Code  Civ.  Pro.,  Cli.  21.) 

TITLE      I.     Forms  relating  to  awarding  and  enforcing  payment  of  costs 
TITLE    II.     Forms  relating  to  tixing  the  amount  of  costs, 
TITLE  III.     Forms  relating  to  security  for  costs,  etc 

TITLE  I. 
Article  First. 

FORMS    RELATING    TO    MISCELLANEOUS    PROVISIONS    AS   TO 
AWARDING  AND  ENFORCING  PAY3IENT   OF  COSTS. 

(Code  Civ.  Pro.,  Ch.  21,  Tit.  1,  Art.  1.) 

No.  1624.     Certificate  entitling  party  to  costs  or  increased  costs. 


No.  1624. 
Certificate  Entitling  Party  to  Costs  or  Increased  Costs. 

(Code  Civ.  Pro.,  §  3248.) 

[Title  of  cause.] 

I,  J.  M.,  referee  in  [or  judge  {or  Justice)  presiding  at  the 

trial  of]  the  above  entitled  action,  do  hereby  certify  that 

the  title  to  real  property  came  in  question  upon  the  trial  of 

said  action  [or  state  other  fact  whereby  eitlier  party  becomes 

entitled  to  costs  or  to  the  increased  costs  specified  in  section 

3258  of  Code  of  Civil  Procedure].' 

Dated ,  18—. 

J.  M.,  Referee^  etc. 


'  Where  the  plaintiff,  in  an  action, 
against  a  municipal  corporation,  to  re- 
cover money,  has  omitted  to  present 
the  claim  for  payment  to  the  chief 
tiscal  officer  of  the  corporation  Ijefore 
the  commencement  of  the  action,  as 
prescri  1)0(1  by  section  3245  of  Code 
Civ.  Pro.,  as  a  prerequi.site  to  the 
allowance  of  costs  to  him,  no  certificate 
of  the  judge  i)re8idiiig  on  the  trial  is 
required  to  ilefeat  jilaintifrs  claim  for 
costs.  (Baine  v.  City  of  Rochester,  ft') 
N.  Y.,523;  8.  C,  1  Civ.  Pro.  K.,2C9.) 


As  the  non-presentation  of  the  claim 
is  not  a  defense  to  the  action,  and  is 
not  a  fact  involved  in  the  trial,  the 
j)rovi.si(>iis  of  section  312-18  of  the  Code 
of  Civ.  Pro.  have  no  application  to 
BU<;li  a  ca.se.     (Id.) 

See,  al.so,  Woml  v.  Excise  Cominis- 
sionei-s  (9  Misc.,  507)  that  section  3l!48, 
ahove  rc'ffn'«Ml  to,  do«'.<  not  iipply  to  a 
sjx'iiial  pi'oceediiij,',  hut  only  tn  nctioiis, 
and  see,  also,  Cievoland  v.  Wilder  (78 
Jlun,  591),  (Jen.sHy  v.  Liddio  (.S2  id., 
85),  Shaver  v.  Eldred  (60  id.,  61). 


1436  FoKMs  Relating  to 

TITLE  II. 
Article  First. 

FORMS  RELATING  TO  SUMS  ALLOWED  AS  COSTS. 
(Code  Civ.  Pro.,  Ch.  31,  Tit.  2,  Art.  1.) 

No.  1635.     Bill  of  costs. 

1626.  Notice  of  motion  for  extra  allowance  of  costs. 

1627.  Order  for  extra  allowance. 

1638.     Affidavit  to  procure  adjournment  of  trial. 
1629.     Order  postponing  trial. 


[Title  of  cause.] 


No.  1625. 
Bill  of  Costs. 

(Code  Civ.  Pro.,  §3351.) 
Costs. 


Costs  before  notice  of  trial    .    . 

Costs  after  notice  and  before  trial 

Additional  defendants  served 

Trial  fee,  issue  of  fact 

Trial  fee,  issue  of  law 

Allowance  by  statute 

Allowance  ol  court 

Costs  of  motion  for 

Trial  occupied  more  than  two  days , 

Appointment  of  guardian  for  infant  defendant 

Procuring  order  diiecliug  service  of  summons  by  publication  or  per- 
sonally without  the  State' 

Procuring  injunction  order  (or  an  order  of  arrest) 

Examination  of  party  before  trial 

Attending  and  taking  deposition  de  bene  esse    

Drawing  interrogatories  to  annex  to  commission 

Making  and  .serving  case ...    , 

Making  and  serving  amendments  to  case 

Making  and  serving  case  of  more  than  fifty  folios 

Term  fees,  for  following  terms,  viz. : 


Costs  of  motion  for  new  trial,  Special  Term 

Proceedings  before  and  after  granting  new  trial ... 

Application  for  judgment  on  special  verdict,  before  argument 

Application  for  judgment  on  .special  verdict,  for  argument 

Appeal  to  'Appellate  Division  (or  General  Terra),  before  argument 
Appeal  to  Appellate  Division  (or  General  Term),  for  argument  .  .. 
Term  fees,  as  follows  : 


Appeal  to  Court  of  Appeals,  before  argument 
Appeal  to  Court  of  Appeals,  for  argument .  . . , 


'See  amendment  to  section  3251,  'See  amendments  to  section  3251, 
Code  Civ.  Pro.,  by  chap.  226  of  Laws  Code  Civ.  Pro.,  by  chap.  946  of  Laws 
of  1896.  of  1895,  taking  effect  January  1,  1896. 


Costs,  eto.  1437 

Term  fees,  as  follows: 


Preparing  case  on  appeal  to  Court  of  Appeals. 

Damages  in  Court  of  Appeals  for  delay 

Interest  on  verdict 


$- 


Disbursements  as  per  next  column 

Total  costs  and  disbursements 

DlSBHRSBMEKTS. 


Kef eree's  fees    

Commissioner's  fees    

Clerk's  trial  fee,  $ ;  clerk's  fee  for  entering  judgment,  $- 

Paid  for  searches 

Paid  affidavits  and  acknowledgments  as  follows: 


Serving  summons  and  complaint 

Paid  referee  settling  case 

Certified  copies  orders  as  follows,  viz: 


Clerk  filing  execution  and  entering  satisfaction 

Transcript  and  filing  

Copy  judgment  for  roll . 

Postage  incurred,  | ;  to  be  incurred,  $ — 

Jurors'  fees 

Stenographer's  fees,  copy 

Sheriff's  fees  on  execution 

Sheriff's  fees  on  attachment 

Sheriff's  fees, terms  as  above  .... 

Copy  minutes , 

For  printing  cases 

For  printing  points , 

For  remittitur 

Copies  following  papers: 


Witnesses'  fees  as  per  statement  below. 


$ 


[Annex  affidavit  of  disbursements,  form  No.  1631,  and  of 
attendance  of  witnesses,  form  No.  1632,  to  original.] 


No.  1020. 
Notice  of  Motion  for  Extra  Allowance  of  Costs. 

(Code  Civ.  Pro.,  g^  8252,  8258.) 

[Title  of  cause.] 
Sir — Take  notice,  that  [on  the  affidavit,  and  the  certificate 


1438  FojiMs  Relating  to 

of  W.  A.,  Esq.,  the  referee,  of  which  copies  are  herewith 
served,  andj  on  all  the  proceedings  in  this  action,  the  plain- 
tiff] will  move  the  court,  at  the  next  [Circuit  and]  Special 
Term  thereof,  to  be  held  at,  etc.,  on,  etc.,  at  the  opening  of 
the  court  on  that  day,  for  an  order  directing  that  an  extra 
allowance  be  made  to  him  in  addition  to  the  usual  costs. 

Dated ,  18—. 

J.  C,  Plaintiff's  Attorney. 
[Office  address.*] 

To  A.  P.,  Esq.,  Defendant's  Attorney. 


No.  1627. 
Order  for  Extra  Allowance. 

(Code  Civ.  Pro.,  §  3253.) 

At  a  circuit  court  [or  Special  Term],  held  at  the  court  house, 

in  the of ,  in  the  county  of , 

on  the day  of ,  18 — , 

Present,  Hon.  J.  P.,  Justice. 

[Title  of  cause.] 

The  plaintiff  in  this  action  having  recovered  of  the  de- 
fendant the  sum  of dollars,  and  it  being  a  difficult 

and  extraordinary  case  in  which  a  defense  has  been  inter- 
posed, and  due  notice  of  this  motion  having  been  given  to 

,  Esq.,  attorney  for  the  [defendant],  and  on  motion 

of  F.  C,  Esq.,  counsel  for  the  plaintiff,  after  hearing,  etc., 
and  on  reading  and  filing  [name  motion  papers] : 

It  is  hereby  ordered,  that  the  plaintiff  be  and  he  hereby 

is  allowed per  cent  on  the  amount  of  such  recovery, 

by  way  of  additional  costs. 


No.  1628. 
Aifldayit  to  Procure  Adjournment  of  Trial. 

(Code  Civ.  Pro.,  §3255.) 

[Title  of  cause.] 

County,  ss. 


C.  D.,  of ,  being  duly  sworn,  says,  that  he  is  the 

defendant  in  this  action, 

'  See  note  2  to  form  No.  122. 


Costs,  etc.  1439 

[That  issue  was  joined   iierein  ou  the  day  of 

-,  18 — ,  and  notice  of  trial  was  served  by  the  (plain- 


tiff) for  the  present  (circuit),  at,  etc.] 

That  the  deponent  has  fully  and  fairly  stated  to , 

Esq.,  his  counsel  herein,  who  resides  at ,  the  case 

in  this  action,  and  the  facts  which  he  expects  to  prove  by 
E.  F.,  a  witness  for  the  deponent  herein. 

That  deponent  is  advised  by  his  said  counsel,  after  such 
statement,  and  believes,  that  the  said  E.  F.  is  a  material 
witness  for  deponent,  and  that  without  his  testimony  de- 
ponent cannot  safelj^  proceed  to  the  trial  of  this  action 
[state  what  has  been  done  to  procure  the  attendance  of  the 
witness,  and  the  cause  of  his  absence]. 

That  the  said  witness  is  not  in  attendance  at  this  said 
circuit. 

That  deponent  believes  and  expects  that  he  will  be  able 
to  procure  the  attendance  of  the  said  E.  F.  at  the  next  cir- 
cuit court,  to  be  held  in  said  county  on  the day  of 

next. 


[Jurat  as  in  form  No.  46.] 


CD. 


No.  1629. 
Order  Postponing  Trial. 

(Code  Civ.  Pro.,  §  3255.) 

[At,  etc.,  as  in  form  No.  80  (when  made  by  the  court)]. 
[Title  of  cause.] 

On  reading  and  hling  the  affidavit  of  C.  D.,  dated 


18 — ,  and  upon  the  application  of  M.  F.,  counsel  for  tlie 
[defendant] : 

It  is  herel)}'  ordered,  nfter  heni-ing.  etc.,  that  the  trial  of 
the  above  entitled  action  be  adjourned  to  I  he  next  circuit 
court  to  be  held,  etc.,  on  payment  to  the  plaintilT's  attorney 
of dollars  costs  [this  day]. 

Date  [when  made  by  judge]. 

[Signature  of  judge  (when  made  by  him).] 


1440  FoKMs  Relating  to 

Article  Second. 

FORMS  RELATING  TO  TAXATION  OF  COSTS. 

(Code  Civ.  Pro.,  Cli.  21,  Tit.  2,  Art.  2.) 

No.  1630.  Notice  of  taxation  and  relaxation  of  costs. 

163L  Affidavit  respecting  disbursements. 

1632.  Affidavit  of  attendance  and  travel  fees  of  witnesseSL 

1633.  Same  affidavit,  another  form. 


No.  1G30. 
Notice  of  Taxation  and  lletaxatiou  of  Costs. 

(Code  Civ.  Pro.,  §3203.) 

Sir — Take  notice,  that  tlie  costs  and  disbursements  men- 
tioned in  the  [foregoing]  bill  will  be  taxed  [or  retaxedj  by 

the  county  clerk  of county,  at  his  office  in  the  [city] 

of ,  on  the day  of ,  18—,  at  o'clock 

in  the noon. 

Dated ,  18—. 

Yours,  etc., 

M.  N. ,  Attorney  for  Plaintiff, 

[Office  address.'] 

To  F.  G.,  Attorney  for  Defendant. 


No.  1631. 
Affidavit  Respecting  Disbursements. 

(Code  Civ.  Pro.,  §3267.) 


[Title  of  cause.] 
County,  ss.: 


A.  B.,  of ,  being  duly  sworn,  says,  that  he  is  the 

attorney  \or  one  of  attorneys]  for  the  plaintiff  [or  defendant] 
in  the  above  entitled  action  ;  that  the  foregoing  disburse- 
ments, other  than  charges  for  the  attendance  of  witnesses 
and  for  travel  fees  of  witnesses,  have  been  necessarily  made 
and  incurred  in  said  action,  on  the  part  of  the  plaintiff  [or 
defendant],  excepting  prospective  charges  contained  therein 
for,  etc.  [stating  same],  which  will  be  necessarily  incurred 

>  See  note  2  to  form  No.  123. 


Costs,  etc.  1441 

in  said  action  ;  that  the  charges  contained  therein  for  copies 
of  documents  and  papers  are  made  for  such  copies  actually 
and  necessarily  used,  or  necessarily  obtained  for  use.  [*] 

[That  the  witnesses  named  in  said  bill  of  costs  were  actu- 
ally in  attendance  the  number  of  days  stated  in  said  bill.'] 

A.  B. 

[Jurat  as  in  form  No.  46.] 


No.  1632. 
Affidavit  of  Attendance  and  Travel  Fees  of  Witnesses* 

(Code  Civ.  Pro.,  §  3267.) 

Title  of  cause.] 
County,  ss.  : 


A.  B.,  of ,  being  duly  sworn,  says,  that  he  is  the 

plaintiff  [or  the  attorney  for  the  plaintiff]  in  the  above  enti- 
tled action. 

That  said  action  was  at  issue,  and  necessarily  upon  the 
calendar  for  trial,  at  the  several  circuits  held  in  and  for  the 

county  of ,  at  the  court  house  in  the  town  of , 

viz.:  one  commenced  on  the day  of ,  IS —  ; 

one  commenced  on  the day  of ,  18 — . 

[That  the  said  action  was  referred  to  W.  O.,  Esq.,  as 
referee,  and  was  brought  to  trial  before  him,  at  his  office  in 
,  on  the day  of ,  18 — .] 

That  each  of  the  persons  named  in  schedule  A,  hereto 
annexed,  which  is  made  a  part  hereof,  attended  the  several 
circuits  [or  Special  Terms,  or  hearings]  therein  named,  pur- 
suant to  a  subpoena,  or  ui^on  special  request  of  this  de- 
ponent, as  a  witness  for  the  plaintiff,  the  number  of  days 
set  opposite  their  respective  names  therein. 

'As  to  disbursements  which  the  587),  Allen  v.  Mahon  (1  Al)b.  N.  C, 
party  to  whom  costs  are  awarded  is  4GS),  Flood  v.  Mooi-e  (J  i(l.,  91),  Con- 
entitled  to  include  in  his  bill  of  costs,  salus  v.  Brotherson  (.')4  How.  Pr.,  6'J), 
eee  section  3256,  Code  Civ.  Pro.,  as  Potter  v.  Carpenter  (56  id.,  89),  lUg- 
amended  by  ch.  331  of  Laws  of  1895,  gins  v.Callahan  (2Civ.Pr.>.R.[Browne] 
Salter  V.  Utica  and  B.  R  R.  Co.  (86  N.  302),  DougliHS  v.  Atw.-ll  (3  id.,  80), 
v.,  401),  Mark  v.  City  of  Buffalo  (87  Hall  v.  United  States  R.-llector  Co.  (•» 
id.,  184),  Provost  v.  Farrell  (13  Hun,  id.,  14S  ;  11  Abb.  N.  C.  217),  Town  of 
303),  Vender  v.  Modgett  (27  i'l  ,  519),  Piernq.ont  v.  LovHaws  (4  Hun.  681), 
Colton  V.  SimmonH  (14  id.,  75),  Corbett  Ivj'iit'il''"  Lil""'  I"^-  S"<'i<'ly  v.  Hugh.'H 
V.  De  Comeau  (45  N.  Y.,  Super.  Ct.,  (125  N.  Y.,  106),  Whitney  v.  Ro«  (7S 


Costs,  etc. 


1441a 


Hun,  508),  Kohn  v.  Manhattan  R.  Co. 
[8  Misc.,  421),  Shaver  v.  Eldred  (86 
Hun,  51),  Matter  of  Bender  (id.,  570), 
Warren  v.  Chase  (8  Misc.,  520),  Chee- 
ver  V.  Pittsburgh  S.,  etc.,  R.  Co.  (74 
Hun,  539),  King  v.  Munzer  (31  Abb. 
N.  C,  482),  "Wolff  V.  Horn  (9  Misc., 
100),  Gilbert  v.  Deshon  (40  State  Rep., 
799),  Matter  of  Metropolitan  Elevated 
R.  Co.  (46  id.,  138),  Seasongood  v. 
N.  Y.  Elevated  R.  Co.  (id.,  832),  Mat- 
ter of  Byron  (61  Hun,  278),  Griggs  v. 
Grinn  (29  Abb.  N.  C,  144),  Pyne  v. 
Nat.  Steamship  Co.  (44  State  Rep  , 
791),  Nestor  v.  Bischoff  (123  N.  Y., 
517),  Jones  v.  Newton  (33  State  Rep., 
823),  Wright  v.  Rensea  (39  id.,  802), 
Chevers  v.  Duncan  (37  id.,  904),  Ste- 
vens V.  N.  Y.  Elevated  R.  Co.  (18  Civ. 
Pro.  R.,  350),  Reichel  V.  N.  Y.  Central, 
etc.,  R.  Co.  [No.  2],  (29  State  Rep., 
841),  Equitable  Life  Assurance  Soc.  v. 
Olyphant  (57  Hun,  414),  Inderlied  v. 
Whaley  (17  Civ.  Pro.  R.,  377),  Clegg 
v.  Aiken    (11   State   Rep.,   354,  aff'd 


without  op.,  109  N.  Y.,  612),  O'Lough- 
lin  V.  Hammond  &  Co.  [No.  2],  (12  Civ. 
Pro.  R.,  171),  Barlow  v.  Barlow  (35 
Hun,  50),  Byrnes  v.  Labagh  (12  id., 
417),  Van  Gelder  v.  Hallenbeck  (15  id., 
333),  Bick  v.  Reese  (52  id.,  125),  Simp- 
son V.  Rowan  (13  Civ.  Pro.  R.,  206), 
Lj-nch  v.  Butler  (43  Hun,  605),  Brown 
V.  Mapleson  (2  City  Ct.,  404),  Deegan 
V.  Karp  (13  Civ.  Pro.,  202),  Matter  of 
Willett  (6  Bern.,  435),  Wood  v.  KroU 
(43  Hun,  328),  Bowe  v.  Brown,  (4  State 
Rep.,  456),  Clegg  v.  Aikens  (17  Abb. 
N.  C,  88),  Varnum  v.  Wheeler  (9  Civ. 
Pro.  R.,  406),  Pfandler  Barm  Extract- 
ing Co.  V.  Pfandler  (39  Hun,  191), 
Same  v.  Sargent  (43  id.,  154),  Cutler 
V.  Morris  (7  State  Rep.,  426),  Nugent 
V.  Keenan  (53  Supr.  Ct.,  530),  Sargent 
V.  Warren  (41  Hun,  103),  Durant  v. 
Abendroth  (48  Hun,  16),  Evans  v.  Fer- 
guson (10  Civ.  Pro.  R.,  57),  Kley  v. 
Healey  (18  State  Rep.,  174),  Kerwin 
Valentine  (13  Civ.  Pro.  R.,  334),  among 
other  caaes. 


1442 


Forms  Relating  to 


That  the  residences  of  said  witnesses  respectively,  the  dis- 
tance therefrom,  according  to  the  usually  traveled  r()^t^^  to 
the  said  court  house  [or  place  of  hearing],  and  the  number 
of  miles  they  severally  traveled  as  such  witnesses,  accord- 
ing to  the  usually  traveled  route,  for  the  purpose  of  going 
to  the  place  of  trial  and  returning  therefrom,  at  said  circuit 
court  [or  hearings],  respectively,  are  correctly  stated  and  se , 
forth  in  said  schedule  A,  opposite  their  respective  names. 

That  each  and  every  of  said  persons  named  in  said  sched- 
ule A,  was  a  necessary  and  material  witness  on  the  part  of 
the  plaintiff  [or  of  the  defendant]  on  the  trial  of  this  action.' 

A.  B. 

[Jurat  as  in  form  No.  46.] 

Schedule  A. 

Circuit  [or  Special  Term,  or  hearing]  commenced  on  the 
day  of ,  18 —  : 


NAMES  or  WITNESSES. 


Miles  from  court 
house  or  bearing. 


Mllei  traveled. 


[Proceed  in  same  manner  as  to  the  subsequent  Circuits, 
etc.] 


No.  1633. 
Affidavit  of  Attendance,  etc.,  of  Witnesses,  Another  Form. 

(Code  Civ.  Pro.,  §  3267.) 

As  in  form  No.  1631  to  [*],  and  from  thence  as  follows : 
Deponent  further  says,  that  G.  H.,  J.  K.  and  L.  M.  were 
severally  necessarily  subpoenaed,  and  attended  as  witnesses 

'  Where  an  affidavit  was  presented  they  were  not  called.     (Robitzek  v. 

upon  the  taxation  of  costs  showing  Hect.  3  Civ.  Pro.  Rf  156  [N.  Y.  Super, 

that  certain  witnesses  for  whom  fees  Ct.,  Sp.  Tm.].) 

were  charged  were  not  called  at  the  See   also,  notes   to   foT-ms  Nos.  356 

trial  ;   Tield,  that  the  clerk  should  re-  and  1631.  and  Allen  v.  Mahon  (1  Abb. 

quire  proof  of  what  was  expected  to  N.  C,  468). 
be  proved  by  such  witnesses.  aTid  why 


Costs,  etc,  1443 

on  the  part  of  the  plaintiff  [or  defendant]  in  this  action, 
and  that  they  were  severally  and  necessarily  in  attendance 

days  each  upon  the  trial  of  this  action,  and  the 

said  G,  H.  and  J.  K.  each  traveled miles  from  the 

town  of to  attend  the  trial  of  this  action. 

[That  L.  M.  resides  in  the  town  of ,  in  the  State 

of ,  and  traveled  from  that  town  to  the  place  of 

trial  to  attend  said  trial  as  a  witness  for  the  plaintiff  (or  de- 
fendant), and  that  he  was  a  necessary  and  material  Avitness, 

and  necessarily  attended  as  such  days  ;  that  he 

came  from  his  said  residence  to  said  place  of  trial  (by  the 

railroad),  which  is   the  nearest  usually   traveled 

route  between  said  places,  and  that  on  said  route  he  en- 
tered this  State  at ,  and  traveled  miles 

therefrom  to  said  place  of  trial,] 

A.  B. 

[Jurat  as  in  form  Xo.  46.] 


TITLE  III. 

FORMS  RELATING  TO  SECURITY  FOR  COSTS,  ETC. 
(Code  Civ.  Pro.,  Ch.  21,  Tit.  3.) 

No.  1634.  Affidavit  to  obtain  security  for  costs. 

1635.  Order  requiring  security  to  be  given. 

1636.  Undertaking  pursuant  to  order  (form  No.  1635). 

1637.  Affidavit  of  merits  to  prevent  inquest. 

1638.  Order  directing  service  of  notice  of  motion  for  cancellation  of 

notice  of  pendency  of  action. 

1639.  Affidavit  on  motion  to  cancel  notice  of  pendenc)'  of  action,  where 

action  has  abated,  etc. 

1640.  Notice  of  motion  for  cancellation  of  notice  of  pendency  of  actioQ. 

1641.  Order  directing  Ccincellation  of  notice  of  pendency  of  action. 


No.  1634. 
Affidavit  to  Ohtain  Security  for  Costs. 

(Code  Civ.  Pro.,  ^t;  3268,  3269,  3271.) 

[Title  of  cause.] 
County,  5.9.; 


C.  D.,  the  dpfendnnt  in  tliis  action,  bein^  duly  sworn, 
says,  that  the  i)lninfiff  herein  does  not  reside  in  this  State, 
but  resides  at ,   in  the  State  of ,  and  so 


1444  Forms  Relating  to 

resided  at  the  comineucement  oi'  this  action  [or  otherwise, 
according  to  the  facts]. 

CD. 
[Jurat  as  in  form  No.  46.] 


No.  1635. 
Order  Requiring  Security  to  he  Giyen. 

(Code  Civ.  Pro.,  §3272.) 

[At,  etc.,  as  in  form  No.  80  (when  made  by  court).] 
[Title  of  cause.] 

On  reading  and  filing  the  afiidavit  of  A.  B.,  dated 


18 — ,  by  which  it  a^^x^ears  that  the  jDlaintiff  herein  does  not 

reside  in  the  State  of  New  York,  but  resides  at ,  in 

the  State  of ,  and  so  resided  when  this  action  was 

commenced  [or  otherwise,  according  to  facts],  with  proof 
of  due  service  of  a  copy  of  said  affidavit  and  of  notice  of 
this  motion  upon  M.  F.,  attorney  for  the  plaintifl',  and  on 
motion  of  A.  B.,  attorney  for  the  defendant,  after  hearing 

,  of  counsel  for  the  plaintifi',  and  on  reading  [name 

any  opposing  papers] : ' 

It  is  hereby  ordered,  that  the  plaintiff  be  and  he  is  hereby 

required,  within days,  either  to  pay  into  court  the 

sum  of  two  hundred  and  fifty  dollars,  to  be  applied  to  pay- 
ment of  the  costs  of  this  action,  if  any,  awarded  against 
him,  or,  at  his  election,  to  file  with  the  county  clerk  of 
county  [or  name  other  clerk  of  the  court],  an  un- 
dertaking, as  required  by  law,  executed  to  the  defendant 
by  one  surety  [or  name  other  number  of  sureties],  to  the 
effect  that  he  [or  they]  will  pay  upon  demand,  to  the  de- 
fendant, all  costs  which  may  be  awarded  to  him  in  this  ac- 
tion, not  exceeding  the  sum  of  [two  hundred  and  fifty] 

^It  seems,  that  no  notice  of  the  mo-  R.  R.  Co.  (1  Civ.  Pro.  R.,  1.0)  Buckley 

tion  need  be  given,  but   that  it  is  in-  v.  Gutta   Percha,  etc.,  Manuf.  Co.  {3 

tended  to  leave  the  plaintiff  to  his  mo-  Civ.  Pro.  R.,  428),  McCall  v.  Frith  (4 

tion    to   review   or   vacate  the  order,  id.,  102),   Hoffman  v.  Lowell  (4  Civ. 

The  practice  was  formerly  to  grant  an  Pro.,   103),  Robert.son  v.  Barnura  (29 

order  to   show  cause  why  such    relief  Hun,  657),  Gage  v.  Peetsch  (12  Misc., 

should  not  be  given.     See  3  Barb.  Ch.  548),    Republic   of  Honduras  v.  Soto 

Pr.    (2d  ed.),  492;  and  see   note   1  to  (112  N.  Y.,  310  ;  rev'g  S.  C,  47  Hun, 

foi-m   No.  162,  as  to   orders   to  show  194),    Montgomery  v.  Odell  (73  Hun, 

cause.  424),   Brewster  v.  Wooater   (9   Misc., 

See  also,  Healy  v.  Twenty-third  St.  690),    Laws   of  1891,    ch.   170  ;  amd'g- 


Forms  Relating  to 


1444a 


§  3268,  Code  Civ.  Pro.  ;  ch.  161  of 
Laws  of  1891;  amd'e  §  3276,  id.,  Ridg- 
wav  V.  Symons  (14  Misc.,  78),  Swift 
V.  Wheeler  (46  Hun,  580),  Churchman 
V.  Merritt  (50  id.,  270),  Trimble  v. 
Kilg-annon  (12  Misc.,  459),  Rutherford 
V.  Town  of  Madrid  (77  Hun,  545, 
rev'g  S.  C,  5  Misc.,  572),  Schmidt  v. 
Eiseman  (6  id.,  264),  Mitchell  v.  Dick 
(8  Misc.,  98),  Sullivan  v.  Remington 
Sewing  Machine  Co.  (27  Hun,  270), 
Sharp  V.  Whitmore  (29  id.,  193),  Beu- 
net  V.  Goble  (43id.,  354),  Tolman  v. 
Syracuse,  B.  and  N.Y.  R.  R.  Co.  (92  N. 
Y.,  353),  Bennett  v.  Townsend  (63 
Hun,  45),  Holmes  v.  Evans  (36  State 
Rep.,  933),  Gates  v.  McDonald  (39  id., 
128),  Longstreet  v.  Sawyer  (id.,  693), 
Loesche  v.  Griffin  (3  Dem..  358),  "Wolff 
V.  Houston  ,  19  State  Rep.,  762),  Mc- 
Donald v.  Peet  (7  Civ.  Pro.  R.,  200), 
Stevenson  v.  N.  Y.,  Lake  Erie,  etc., 
R.  Co.  (14  id..  384),  Abel  v.  Bradner 
(15  id.,  241),  Todd  v.  Marsily  (7  State 
Rep.,  872),  Fessenden  v.  Blanchard 
(48  Hun,  350),  Wassinger  v.  Fennell 
(13  Civ.  Pro.  R.,  286),  McDougall  v. 
Gray  (15  id.,  237),  Gifford  v.  Rising 
(48  Hun,  12S),  Fitzsimmons  v.  Curley 
(6  Civ.  Pro.  R.,  156),  Krom  v.  Kura- 
heedt  (51  Super.  Ct.,  119),  Grant  v. 
Crittenden  (13  Civ.  Pro.  R.,  123),  Mc- 
Donald v.  Gray  (15  id.,  237),  Wyckoff 
V.  Devlin   (2  How.  Pr.  [N.  S.],   333), 


F.  A.  Kennedy  Co.  v.  McCormack  (15 
Civ.  Pro.  R.,  239),  Nugent  v.  Keenan 
(53  Super.  Ct.,  530),  Newhall  v.  Ap- 
pleton  (6  N.  Y.  Supp.  4),  Reck  v. 
Phenix  Ins.  Co.  (5  id.,  543;  18  Week. 
Dig.,  505),  Brackett  v.  Griswold  (46 
Hun,  442),  Renwick  v.  N.  Y.  Central 
R.  Co.  (55  Super.  Ct.,  444),  Donner  v. 
Ogilvie  (12  Civ.  Pro.  R  ,  399),  Wood 
V.  Blcdgett  (49  Hun,  64),  Winchester 
V.  Brown  (51  id.,  284),  Lyon  v.  Park 
(111  N.  Y.,  350),  Hinman  v.  Pierce 
(50  Hun,  209),  Fraser  v.  Ward  (13 
Daly,  431),  Badger  v.  Appleton  (12 
Civ.  Pro.,  93),  Longrill  v.  Downey 
(27  State  Rep.,  51),  Haines  v.  Judd  (18 
Civ.  Pro.  R.,  324),  Rothschild  v.  Wil- 
son (24  Abb.  N.  C,  123),  Fagan  v. 
Strong  (19  Civ.  Pro.  R.,  88),  Kokoma 
Straw  Board  Co.  v.  Sacho  (17  id., 
432),  Sims  v.  Bonner  (42  State  Rep., 
10),  Enoch  V.  Funke  (28  Abb.  N.  C, 
240),  Murphy  v.  Manhattan  Brass  Co. 
(44  State  Rep.,  834),  McHugh  v.  Astro- 
phe  (1  Misc.,  218),  Barnes  v.  Seligman 
(51  State  R.,  376),  Cornel  v.  Heinze 
(id.,  461).  Lafrentz  v.  Mass  (26  N.  Y. 
Supp.,  739),  Schwartz  v.  Scott  (25  Civ. 
Pro.  K.,  53),  Edward  Thompson  Co. 
v.  Lobenthal  (24  Civ.  Pro  ,  247),  Hand 
V.  Shaw  (13  Misc.,  143),  Hale  v.  Ma- 
son (86  Hun,  499),  as  to  this  proceed- 
ing. 


Costs,  etc.  1445 

dollars,  and"  to  serve  a  written  notice  of  said  payment,  or 
of  the  filing  of  said  undertaking,  upon  the  defendant's 
attorney. 

And  it  is  further  ordered,  that  all  other  proceedings  on 
the  part  of  the  plaintiffs,  except  to  review  or  vacate  this 
order,  be  and  they  are  hereby  stayed,  until  the  said  pay- 
ment or  filing,  and  notice  thereof,  and  also  if  an  undertak- 
ing be  given  until  the  allowance  of  the  same. 

Dated ,  18 —  [when  made  by  judge]. 

[Signature,  when  made  by  judge.] 


No.  1636. 
Undertaking  Pursuant  to  Order  (form  No.  1635). 

(Code  Civ.  Pro.,  §  3273.) 

[Title  of  cause.] 

Whereas,  an  order  was  made  by  Hon.  A.  0.,  justice  [or 

judge]  of  the court  [or  by  the Court,  at  a 

Term  thereof,  held  at,  etc.,  on,  etc.],  requiring  the 

jDlaintiff  to  file  with  the  county  clerk  of county 

[or  otherwise  describe  clerk],  an  undertaking  for  the  pay- 
ment to  the  defendant  of  the  costs  which  might  be  awarded 
against  him  in  the  above  entitled  action,  in  the  penalty  and 
with  the  sureties  hereinafter  mentioned  : 

Now,  therefore  [we],  E.  F.,  of [and  G.  H.,  of 

],  do  hereby,  jointly  and  severally,  undertake,  to 

and  with  the  above  named  defendant,  that  we  will  pay, 
on  demand,  to  said  defendant,  all  costs  which  may  be 
awarded  to  him  in  the  above  entitled  action,  not  exceeding 
the  sum  of  [two  hundred  and  fifty]  dollars.' 

Dated ,  18—. 

E.  F. 
[G.  H.] 

[Acknowledgment  or  proof,  affidavit  and  approval  as  in 
forms  Nos.  340  and  538.] 

•  See  as  to  boml  under  former  stat-         As  to  giving  a.lditional  security,  and 

ute,  Warner  v.  Rohs  (9   Ahl).  N.  C,  in  what  cases,  see  section  SliTO,  i'd.,  as 

385),  Schenke  v.  Rowell  {lAl)b.  N.  C,  amended  by  ch.  KU  of  Laws  of  IS'.ll; 

29r>);  and  see,  also.  Brewster  v.  Woos-  Republic  of  HoiKJuras  v.  Koto  (ll'J  N. 

ter  (f)  Misc.,  690),  Rolhsclidd  V.  Wil.son  Y.,    310),     Beiniett    v.    Townsend    (63 

(24  Abl).  N.  C,  123),  and  see  note  I  to  Hun,  i^i),  Brciwster  v.  Wooster  {supra) 

form  No.  103.0,  and  cases  there  cited.  and  note  above  referred  to. 

As  to  excei)tion  to  sureties  and  their         As  to  effect  of  failure  to  obey  order 

justification  and  allowance  of  the  un-  to  give  security,  see  section  3277,  id., 

dertaking,  see  sections  3274,3275,  Code  and  Hoffman  v.  Ridley  (4  Civ.  Pro.  R., 

Civ.  Pro.  41),  and  note  above  referred  to. 


1440  Forms  Relating  to 

No.  1637. 
Affidavit  of  Merits  to  Prevent  Iu(j[iiest. 

(Code  Civ.  Pro.,  g  980.) 

[Title  of  cause.] 
County,  ss.: 


11.  J.,  tlie  defendant  [or  the  attorney  for  the  defendant]* 
in  the  above  entitled  action,  being  duly  sworn,  says,  that 
he  has  fully  and  fairly  stated  the  case  to  A.  B.,  his  counsel 

in  said  action,  who  resides  at ,  in  the  county  of 

;  and  that  he  has  a  good  and  substantial  defense 

on  the  merits  in  said  action  as  he  is  advised  by  said  counsel 
[after  said  statement]^  and  verily  believes  [or  that  from  the 
statement  of  the  case  in  the  action  made  to  him  by  the  de- 
fendant, he  verily  believes  that  the  defendant  has  a  good 
and  substantial  defense  upon  the  merits  to  the  cause  of  ac- 
tion set  forth  in  the  complaint  or  some  part  thereof]. ' 

[That  the  reason  why  this  affidavit  is  not  made  by  the 
defendant  is  that  (state  reason).'] 

R.  J. 

[Jurat  as  in  form  No.  46.] 


No.  1638. 

Order  Directing  Service  of  Notice  of  Motion  for  Cancella- 
tion of  Notice  of  Pendency  of  Action. 

(Code  Civ.  Pro.,  §1674.) 

[At,  etc.,  as  in  form  No.  80.] 

[Title  of  cause.] 
On  reading  and  filing  the  annexed  affidavit  and  notice  of 

As  to  attorney's  liability  for  costs,  sufficient  excuse,  an  attorney  may  make 

see    section    3278,    id.;   also,    In    re  the  affidavit.   (Geib  v.  Icard,  lljohns., 

Levy   (14    Week.    Dig.,   360),    Krom  82;  Pliilip.s  v.  Blagge,  3  id.,  141.)    But 

V.    Kursheedt   (20  Week.  Dig.,  339),  a  sufficient  excuse  mu.st  be  stated  for 

Matter    of    Levy    (2    Civ.     Pro.     R.  its  not  being  made  by  the  defendant. 

[Browne],    108),    and  note   above  re-  (Eoosevelt  v.  Dale,  2  Cow.,  581,  583; 

ferred  to.  Johnson  v.  Lynch,  15  How.,  199.) 

As  to  application  of  title  4  of  chap-  2  ggg  Brown  v.   Seys  (2  How.  Pr., 

ter  21  of  Code  Civ.  Pro.,  see  section  276),  overruling  Lansing  v.  Mickels  (1 

3279,  id.,  and  Hasler  v.  Johnston  (69  How.  Pr.,  248). 

How.  Pr.,  432),  and  said  note.  '  Insert  this  last  clause  in  brackets 

'  In  the  absence  of  the  party,  or  other  in  case  the  affidavit  is  made  by  the  at 


Costs,  etc.  1447 

motion,  and  on  motion  of  A.  W.,  of  counsel  for  the  de- 
fendant : 

Ordered^  That  notice  of  said  motion  be  given  to  [naming 
parties  to  be  served]. 

No.  1639. 

Affidavit  on  Motion  to  Cancel  Notice  of  Pendency  of  Actioi>, 
where  Action  has  Abated,  etc. 

(Code  Civ.  Pro.,  §  1674.) 

[Title  of  cause.] 

A.  W.,  being  duly  sworn,  says,  that  he  is  one  of  the 
attorneys  for  the  defendant  in  the  above  entitled  action. 

That  T.  S.,  the  plaintiff  in  said  action,  died  after  the  com- 
mencement of  said  action,  and  during  the  pendency  thereof, 
to  wit :  on  the day  of ,  18 — . 

That  on  the — ■  day  of ,  18 — ,  an  order  w^as 

made  and  entered  in  said  action,  at  a  Special  Term  of  the 
Supreme  Court,  held  at,  etc.,  which  jorovided  and  directed 
that  said  action  shoutd  abate,  unless  it  w^as  continued  by 
the  proper  parties  within  six  montlis  after  the  granting  of 
the  last  mentioned  order. 

That  it  appears  by  affidavits  filed  with  the  papers  upon 
the  motion,  upon  which  said  order  was  granted,  that  said 
motion  was  made  upon  due  notice  to  the  heirs  at  law  and 

devisee  of  said  plaintiff,  to  S.  AV.,  Esq.,  of ,  who 

appeared  as  the  attorney  for  the  plaintiff  in  said  action, 
etc.,  as  required  by  an  ordered  entered  in  said  action  on  the 

day  of ,  18 — ,  at  a  Si>ecial  Term  of  this 

court,  held  at,  etc. 

That  on  the day  of ,  18 — ,  upon  the  affidavit 

of  tliis  deponent,  showing  that  said  action  had  not  been 
continued  by  the  proper  parties,  or  by  any  person  on  their 
behalf,  although  more  than  six  months  had  elapsed  since 

the  granting  of  said  order  of ,  18 — ,  an  order  was 

made  and  entered  upon  the  application  of  said  defendnnt's 
attorneys,  at  a  Special  Term  held  by,  etc.,  on,  etc.,  in  the 

torney.     See,  also,  note  5  to  form  No.     of  merits  cannot  be  taken  where  flie 
412,  and  rule '24of  0(;n.  Rules  of  Prac.     •■iiiswcr  is  verified.     (Code  Civ.   Pro., 
An  inquest  for  want  of  an  allidavil    §  1)80.) 


1448  FoiiMS  Relating  to 

[city]  of ,  that  the  said  action  be  and  the  same  was 

therel)}^  abated.  And  deponent  further  says,  tliat  on  the 
da}'  of ,  in  the  year  18 — ,  a  notice  of  pend- 
ency of  said  action  was  tiled  by  the  plaintiff,  or  his  attorney 
therein,  in  the county  clerli's  office,  with  the  com- 
plaint therein,  and  recorded  in  said  clerk's  office. 

That  said  notice  was  in  form  as  prescribed  by  article 
ninth  of  title  first  of  chapter  fourteenth  of  the  Code  of  Civil 
Procedure,  and  stated  the  names  of  tlie  parties,  the  object 
of  the  action,  ;nid  contained  a  brief  descrij)tion  of  the  prop- 
erty in  said  countj'^  of affected  thereby,  and  that 

said  notice  has  never  been  cancelled,  but  is  still  of  record 
and  on  file  in  said  clerk's  office. 

That  said  action  was  brought  [for  the  recovery  of  the 
possession,  by  the  plaintiff,  of  a  certain  house  and  lot  of 

land,  in  the  (city)  of ,  described  in  the  comi^laint 

in  said  action,  and  of  which  the  defendant  was,  at  tlie  com- 
mencement of  said  action,  and  still  is,  in  X'ossession  claim- 
ing to  be  the  owner  thereof,  and  for  the  recovery  of  damages 
for  the  withholding  thereof]. 

That   said   actions   were   triable   in   the   said   county  of 

,  which  county  was  designated  in  the  complaint 

therein  as  the  r)lace  of  trial  thereof,  i 

A.  W. 

[Jurat  as  in  form  No.  46.] 


No.  1640. 


Notice  of  Motion  for  Cancellation  of  Notice  of  Pendency  of 

Action. 

(Code  Civ.  Pro.,  §  1674.) 

[Title  of  cause.] 

Take  notice,  that  a  motion  will  be  made  in  the  above  enti- 
tled action,  at  [a  Special  Term  of  the  Supreme  Court,  to  be 

held  at,  etc.,  in  the  (city)  of ,  on  the day 

of ,  18 — ],  at  the  opening  of  the  court,  or  as  soon 

thereafter  as  counsel  can  be  heard,  that  the  notice  of  pend- 
ency of  the  said  action,  mentioned  and  described  in  the 
annexed  affidavit,  be  cancelled  of  record  by  the  county 
clerk  of county,  in  the  manner  prescribed  by  law. 


'  See,  also,  amendments  to  §  1674,  Code  Civ.  Pro.,  by  ch.  504  of  Laws  of  1893. 


Costs,  etc.  1449 

and  for  such  other  or  further  order  or  relief  as  may  be 
proper ;  that  said  motion  will  be  made  upon  the  said  affi- 
davit annexed  hereto. 

Dated ,  18—. 

A.  W.,  Attorney  for  Defendant. 
[Office  address.'] 
To  [name  parties  on  whom  notice  is  directed  to  be  served 
by  order,  form  No.  1638]. 


No.  1641. 


Order  Directing  Cancellation  of  Notice  of  Pendency  of 

Action. 

(Code  Civ.  Pro.,  §  1674.) 

[At,  etc.,  as  in  form  No.  80.] 
[Title  of  cause.] 

On  reading  and  filing  the  affidavit  of  A.  W.,  the  attorney 

for  the  defendant  in  the  above  entitled  action,  dated , 

18 — ,  together  with  the  order  of  this  court,  made  at  a  Special 
Term  thereof,  held,  etc.,  directing  the  service  of  notice  of 
this  motion  and  of  copies  of  said  affidavit  and  of  said  order 
upon  the  parties  therein  mentioned,  and  on  reading  and 
filing  proof  of  due  personal  service  of  said  notice  of  motion 
and  of  copies  of  said  affidavit  and  order  as  directed  by  said 
order,  and  on  motion  of  A.  W.,  counsel  for  the  defendant, 
no  one  appearing  to  oppose  [etc.]  : 

It  is  hereby  ordered,  that  the  notice  of  jDendency  of  action 

filed  and  recorded  in  the county  clerk's  office  on 

or  about  the  day  of  ,  18 — ,  in  the  above 

entitled  action  be  cancelled  of  record  by  the  county  clerk  of 
county  in  the  manner  prescribed  by  law. 

•  See  note  2  to  form  No.  123. 
182 


INDEX. 


{The  references  are  to  the  pages  :  those  followed  by  a  letter  are  coTisidered  and 
referred  to  as  part  of  the  original  page.  See,  also,  Table  of  Contents,  at 
beginning  of  each  volume.] 


ABATEMENT  AND  REVIVOR : 

affi(iavit  for  continuing' action,     {^ee  Affidavit.) 229 

notice  of  motion  for  continuing  action,     {^ee  Notice.) 231 

order  for  continuing  action.     (See  Order.) 231-234 

ACCEPTANCE  OF  OFFER : 

by  plaintiff  of  offer  of  defendant  to  liquidate  damages  conditionally,     224 

of  offer  of  defendant  to  allow  judgment 226 

same,  in  a  justice's  court 1381 

by  defendant  of  plaintiff 's  offer  of  judgment 226 

of  offer  of  judgment  on  appeal  from  money  judgment  of  justice  of 
the  peace  1424 

ACCOUNT : 

demand  of  copy  of 109 

copy  of,  furnished  on  demand 110 

affidavit  to  obtain  i-eference  in  action  involving  long 335 

affidavit  to  oppose  motion  to  refer,  denying  account,  etc 337 

annual,  of  a  general  guardian 1371 

of  a  committee  of  an  idiot,  lunatic,  etc 1111 

of  executor  or  administrator 1326 

on  final  judicial  settlement 1329 

affidavit  to,  of  executor  or  administrator 1328 

of  guardian 1113,  1371 

of  committee  of  lunatic,  etc 1114 

ACCOUNTING. 

(See  Judicial  Settlement  of  Account) 1321 

ACKNOWLEDGMENT : 

of  keeper  of  jail   on   surrender  of  prisoner  by  his  sureties  in  bond 

given  for  jail  liberties 22 

of  new  sheriff  of  receipt  of  property,  etc 24 

ACTION : 

for  complaints,  etc.,  in  various  actions. 
(See  Affidavits,  Answers,  Co7nplaints,  Judgments,  Notices,  Notices  of  Pend- 
ency of  Action,  Orders,  Undertakings,  etc.,  and  see  Titles  of  Actions, 
respectively.) 

revival  of 229 

ADJOURNMENT  : 

undertaking  on,  in  justice's  court 1398,  1399 

ADMINISTRATION  : 

proceedings  for 1282 

(See,    also,    Appearance,  Bond,  Citation,  Decree,  Letters  of  Administra- 
tion, Oath,  Renunciation.) 
ADMINISTRATOR : 

action  by  or  against 721 

ADMISSION  : 

of  service  of  summons 61 

affidavit  to 61 

of  counterclaim  by  jjlaintiff " 100 

ADULTERY : 

(See  Answers,  Affidavits,   Complaints,  Judgments,   Notices,   Orders,  etc., 

relating  to  Matrimonial  actions.) 
ADVERTISEMENT  : 

(See  Notice.) 
forms  of  proceedings,  to  foreclose  mortgage,  by 11 66 


1452  Inde^. 

AFFIDAVIT- 

(See,  also,  Petition.) 

to  obtain  adjournment  of  trial,  general  form  of 1431 

in  action  to  annul  marriage, 

to  procure  order  of  reference  in  suit  to  annul  marriage 673 

same,  on  ground  of  non-age 674 

relating  to  appointment  of  committee  of  lunatic,  etc., 

to  be  annexed  to  petition 1092 

for  discbarge  of  committee 1109 

relating  to  appointment  of  guardian  ad  litem, 

on  application  for  guardian  ad  litem,  for  infant,  of  person  pro- 
posed as  guardian,  as  to  his  ability  to  answer  to  infant,  etc. . .       78 

to  procure  order  designating  guardian  ad  litem,  for  infant  re- 
siding in  tbe  State,  but  temporarily  absent  therefrom 81 

relating  to  arbitration, 

oaths  of  arbitrators 1145 

on  application  to  confirm  award,  in  case  of  the  death  of,  or  ap- 
pointment of  a  committee  for  a  party,  after  filing  or  delivering 

the  award 1151 

relating  to  arrest  of  defendant, 

to  procure  order  of  arrest  in  civil  action,  where  right  of  arrest 
depends  on  nature  of  the  action 123 

same,  where  right  of  arrest  depends  upon  facts  extrinsic  to  tbe 
cause  of  action  124 

to  procure  discharge  of  privileged  person  from  arrest 128 

to  procure  discharge  from  arrest,  when  judgment  not  duly  en- 
tered or  execution  duly  issued 130 

of  witness  to  obtain  discharge  from 12 

in  justices'  courts  (see  below). 
relating  to  attachment  of  property, 

for  attachment  against  property  of  non-resident  defendant,  in  ac- 
tion for  breach  of  contract 163 

to  obtain  in  action  other  than  for  breach  of  contract 164 

to  obtain  against  property  of  a  foreign  corporation 165 

to  obtain  against  property  of  absconding,  etc.,  defendant 165 

to  obtain  in  action  against  public  officer,  etc.,  for  peculation. . . .     166 

of  refusal  to  give  certificate  of  property,  or  of  making  false  or 
insufficient  certificate 173 

to  obtain  appraisal  of  domestic  or  foreign  vessel  held  under 
attachment 179 

of  defendant  on  application  for  the  foreign  vessel  or  its  proceeds,     185 

by  partner  for  discharge  of  his  interest  in  partnership  property 
from  attachment 196 

of  sheriff  accompanying  petition  for  sale  bj^  him  of  debts  and 
things  in  action  tmder  attachment 203 

of  defendant  on  application  to  be  substituted  for  sheriff  in  suit 
on  attached  demand 205 

to  procure  order  cancelling  notice  attaching  real  property 206 

in  justices'  courts  (see  below). 


Index.  1453 

AFFIDXYIT— (Continued). 

relating  to  cancellation  of  notice  of  pendency  of  action, 

on  motion  to  oDtain  order  for 1447 

relating  to  writ  of  certiorari  to  review, 

on  application  for  writ  of  certiorari  to  review 989 

of  service  of  same S91 

relating  to  proceedings  to  change  name  of  individual, 

of  publication  of  order 1167 

relating  to  change  of  place  of  trial, 

to  procure  change  to  proper  county  after  demand 313 

for  convenience  of  witnesses 314 

to  secure  an  impartial  trial 316 

to  prevent  change  of  place  of  trial 318 

relating  to  commission  for  examination  of  a  witness, 

to  obtain  commission  for 285 

in  case  of  default ...     286 

after  judgment,  when  necessary  to  carry  judgment  into  effect  , .     287 

under  subd.  3  of  section  888  of  Code  Civ.  Pro 287 

under  subd.  4  of  section  88S  of  Code  Civ.  Pro 288 

to  procure  open  commission  or  for  oral  examination,  or  to  take 

deposition 295 

of  agent,  or  of  party  receiving  from  agent,  by  whom  commission 

or  deposition  is  returned 298 

for  commission,  where  the  witness  does  not  understand  the  Eng- 
lish language 301 

to  obtain  subpoena  in  suit  in  foreign  court  where  no  commission 
has  been  issued 304 

relating  to  compelling  attendance,  etc.,  of  vritnesses, 

of  service  of  subpoena    264 

to  procure  warrant  for  apprehension  of  defaulting  witness 267 

to  procure  discharge  of  witness  from  arrest 270 

to  be  made  by  witness  on  request  of  sheriflE  to  prevent  arrest 271 

relating  to  consolidation  of  actions, 

to  move  for  consolidation  of  actions 251 

to  obtain  order  for  substitution  of  claimant  as  defendant 254 

relating  to  contempt  proceedings, 

to  procure  warrant  or  order  to  show  cause 1058 

of  delivery  of  execution  to  sheriff 1066 

of  service  of  notice  to  return  execution 1005 

of  search  for  mandate 1067 

where  the  accused  is  in  custody  of  sheriff,  etc 1069 

to  obtain  release  of  offender 1076 

in  proceedings  for  contemjit  in  not  obeying  surrogate's  decree 
directing  payment  of  money,  etc 1226 

relating  to  continuing  action  on  death  of  party, 

on  motion  to  continue  action  in  name  of  representative  of  de- 
ceased party,  sole  plaintiff  or  defendant 229 

on  motion  to  continue  action  by  successor  in  interest  of  deceased 

plaintiff    230 

on  appeal  (see  below). 


1454  Index. 

AFFWAYIT— (Continued). 

in  action  against  unincorporated  association 905 

relating  to  costs, 

of  disbursements  on  taxation  of 1440 

of  attendance,  etc.,  of  witnesses  on  taxation  of 1441,  1443 

to  obtain  security  for  1443 

in  action  relating  to  decedent's  estate, 

to  obtain  order  from  surrogate  to  issue  execution  against  an  exe- 
cutor or  administrator 725 

relating  to  discovery  of  books  and  papers, 

to  procure  order  vacating  order  to  show  cause  why  discoveiy 

should  not  be  allowed 245 

relating  to  discovery  of  death  of  tenant  for  life  of  real  property, 

to  procure  writ  of  habeas  corpus  for  prisoner,  etc 1085 

relating  to  dismissal  of  complaint, 

on  motion  to  dismiss  complaint  for  failure  to  proceed  in  action. .     258 
relating  to  documentary  evidence, 

to  prevent  notary's  certificate  of  presentment,  etc.,  being  pre- 
sumptive evidence 308 

in  action  for  dower, 

to  obtain  leave  to  pay  gross  sum  in  satisfaction  of  dower  in 559 

relating  to  entry  of  judge's  order, 

to  procure  order  for  entering  of  order  made  by  judge  out  of 

court 399 

relating  to  examination  of  party  to  action, 

to  obtain  order  for  examination  of  party,  etc.,  in  pending  action,     273 
to  obtain  order  for  examination  of  person  who  expects  to  be  a 

party  to  action 275 

of  eervice  of  order  for  examination  of  party,  etc 280 

to  obtain  order  to  take  deposition  or  affidavit  to  be  used  on 

motion 282 

relating  to  executions. 

to  obtain  order  discharging  levy  under  execution  where  appeal 

has  been  taken  and  security  given 404 

on  motion  for  leave  to  issue    437 

on  motion  for  leave  to  issue,  against  property  of  deceased  judg- 
ment debtor 440 

on  application  for  discharge  of  personal  property  of  firm  from 

levy 449 

to  move  for  substitution  of  indemnitors  for  sherifi:'  *  455 

to  obtain  order  to  prevent  waste  upon  property  sold  under 463 

to  obtain  order  to  show  cause  why  party  should  not  be  punished 

for  violation  of  order  to  prevent  waste 464 

of  amount  due  on  judgment  on  redemption  from  sale  under  ....     469 
of  verification  of  assignment  of  judgment  or  mortgage  on  such 

redemption 470 

of  amount  due  on  mortgage  on  such  redemption 471 

*  See  Addenda  referring  to  this  form  (No.  588). 


Index.  1455 

AFFIDAVIT— ( Continued). 

by  joint  judgment  creditor,  or  redeeming  creditor  to  preserve  lien 

of  judgment 482 

by  heir,  etc.,  of  judgment  debtor,  who  has  redeemed  a  portion 

of  premises  sold  to  preserve  lien 483 

in  action  to  foreclose  chattel  lien, 

to  procure  warrant  in 661 

in  action  to  foreclose  mortgage, 

on  motion  for  reference  in 574 

on  motion  for  reference  on  claim  to  surplus  moneys  in 591 

on  application  for  writ  of  assistance  in 605 

relating  to  foreclosure  of  mortgage  by  advertisement, 

of  sale , , .  1158 

of  publication  of  notice  of  sale  and  postponement 1159 

of  affixing  notice  of,  at  or  near  entrance  to  court  house 1160 

of  affixing  copy  of  notice  by  county  clerk  in  book  kept  by  him.  1160 

of  service  of  notice  of  sale 1 161 

relating  to  injunction  order, 

to  procure  injunction  order,  where  right  thereto  depends  on 

nature  of  action 143 

to  procure  injunction  order  where  the  right  thereto  depends  on 

extrinsic  facts  143 

on  application,  without  notice  to  vacate  or  modify  injunction 

order  t)  other  court  or  judge  than  the  one  granting  it 159 

relating  to  insolvent  debtors  and  prisoners, 

of  debtor  to  be  annexed  to  his  schedule 998 

of  service  of  order  to  show  cause 999 

of  publication  of  same,  pursuant  to  order lOOO' 

to  procure  order  for  petitioner  to  produce  his  non-resident  wife,  1003 

on  refusal  of  trustee  to  produce  certificate,  etc 1010' 

to  be  annexed  to  schedule  on  petition  for  exemption  from  arrest 

and  discharge  from  imprisonment  of  insolvent  debtor 1015 

of  merits  to  prevent  inquest 1446 

on  motion  for  judgment, 

of  default  on  motion  for  judgment 353 

after  service  by  publication 359 

for  cancellation  of  judgment  after  discharge  in  bankruptcy.   . . .     375 
on  motion  to  exempt  real  property  from  lien  of  judgment  pending 

appeal 371 

in  judgment  creditor's  action, 

to  obtain  leave  to  make  supplemental  complaint  in 764 

relating  to  suit  upon  judgment, 

to  apply  for  leave  to  sue  upon  a  judgment 854 

in  justices'  courts, 

to  obtain  order  of  arrest .- 1381 

to  procure  discharge  of  privileged  person  from  arrest 1385 

for  attachment 1386 

to  procure  replevin  of  chattel 1392 

to  require  return  of  chattel  replevied 1394 


1456  Index. 

AFFIDAYIT— (Continued). 

by  third  person  or  his  agent  or  attorney  claiming  title  to  chattel 

replevied ; 1395 

to  procur*,  warrant  for  attachment  of  witness  1401 

to  obtain  commission 1404 

of  service  of  notice  of  application  for  commission 1405 

of  debtor  to  obtain  discharge  from  imprisonment  under  execution,  1416 

to  obtain  order  transferring  action 1432 

relating  to  writ  of  mandanms, 

on  ai^plieatiou  for  writ  of  mandamus 969 

of  service  of  alternative  writ  of  mandamus 973 

in  matrimonial  actions, 

on  application  for  leave  to  marry  again 702 

to  obtain  sequestration  of  property  on  failure  to  comply  with 

order  or  judgment  directing  payment  of  alimony,  etc 704 

on  motion  for  order  to  show  cause  why  husband  should  not  pay 

alimony 707 

(See  above  in  action  to  annul  marriage.) 
on  motion  for  new  trial, 

to  move  for  new  trial  on  the  ground  of  surprise 329 

on  the  ground  of  newly  discovered  evidence 330 

in  action  on  official  bond, 

to  obtain  leave  to  prosecute  sheriff's  official  bond 767 

to  move  for  ratable  distribution  of  moneys  collected  out  of  sure- 
ties in  sheriff's  bond 772 

in  action  for  partition  of  real  property, 

on  application  to  surrogate  for  leave  to  bring  by  infant 507 

for  reference  in,  where  a  defendant  has  made  default,  or  a  party 

is  an  infant,  etc 647 

on  application  by  party  for  money  paid  into  court  by  referee  . . .     532 
of  service  upon  owner  of  incumbrance,  of  notice  of  application 

for  moneys  by  owner 534 

to  move  to  substitute  sucessor  in  interest  as  a  defendant,  on 

death  of  one  of  two  or  more  plaintiffs  or  defendants  in 540 

relating  to  pleadings, 

to  apply  for  dismissal  of  complaint,  when  not  served  pursuant 

to  demand 85 

of  verification  of  pleading  by  party,  or  by  one  or  more  parties 

united  in  interest  and  pleading  together 105 

same,  by  officer  of  domestic  corporation 106 

same,  by  person  acquainted  with  the  facts,  where  the  people  of 

the  State  are,  or  a  public  officer  in  their  behalf  is,  a  party 106 

same,  by  foreign  corporation  or  by  agent  or  attorney  for  the  partj^     107 
of  veritication  by  party  of  account  furnished  on  demand  when 

the  pleading  is  verified  109 

by  agent  or  attorney  of  party  to  obtain  order  for  bill  of  par- 
ticulars      Ill 

relating  to  writ  of  prohibition. 

of  service  of  alternative  writ  of 978 


Index.  1457 

AFFIDAVIT— (Continued). 

relating  to  real  actions  generally, 

on  application  for  order  staying  waste  in 751 

to  procure  survey  of  premises  in 631 

in  action  to  recover  real  property, 

on  application  to  the  court  for  delivery  of  property 495 

on  motion  for  order,  directing  plaintiff's  attorney  to  produce  his 

authority 497 

on  motion  for  division  of  action  where  different  parties  succeed 
to  the  rents  and  profits  or  liability  therefor,  and  to  the  real 

estate ....     501 

on  application  for  new  trial  in 503 

on  motion  for  reference, 

to  move  for  compulsory  reference 335 

to  oppose  motion  for  reference 336 

relating  to  removal  of  cause,  etc. ,  from  countj^  court, 

to  apply  for  removal  of  cause  or  proceeding  to  Supreme  Court  in 

case  of  incapacity  of  county  judge 29 

same,  for  purpose  of  changing  place  of  trial  under  subd.  2  of  sec- 
tion 340,  Code  Civ.  Pro 31 

same,  under  subd.  3  of  section  340,  Code  Civ.  Pro 31 

in  action  of  replevin, 

of  plaintiff  to  require  chattel  to  be  replevied  in 635 

by  agent  or  attorney  of  plaintiff 637 

by  defendant  to  require  return  of  chattel  replevied 639 

same,  by  agent  or  attorney  of  defendant 640 

by  third  person  claiming  title  to  chattel  replevied 643 

by  agent  or  attorney  of  third  person,  claiming  title  to  chat- 
tel replevied 642 

relating  to  service  of  summons  and  complaint, 

of  service  of  summons  and  complaint  by  person  other  than  sheriff,      47 

on  infant  under  fourteen  years 48 

on  lunatic,  etc.,  for  whom  committee  has  been  appointed 48 

on  a  corporation 49 

on  person  designated  by  foreign  corporation  to  receive  the  same,      49 
on  foreign  corporation,  where  no  person  is  designated  to  receive 

service 50 

on  under-sheriff,  etc.,  for  sheriff,  in  action  for  escape 51 

to  obtain  order  dispensing  with  service  of  summons  on  lunatic. .       54 
to  procure  order  for  service  of  summons  on  a  resident  who  cannot 

be  found 62 

of  plaintiff,  or  his  attorney,  to  obtain  order  for  service  of  sum- 
mons by  publication 64 

of  search  and  inquiry  for  defendant  to  obtain  such  order 65 

of  deposit  in  the  post-offlce  pursuant  to  order <>9 

of  service  of  defendant  without  tlic  State 69 

same  in  suit  for  divorce  or  sepanition  or  to  annul  a  marriage  . .  .     706 
to  obtain  stay  of  proceedings  upon  appeal  from  order  directing  pay- 
ment of  money 421 

188 


1458  Index. 

AFFID  A  VIT— ( Continued). 

relating  to  substitution  on  death,  etc.,  of  party  on  appeal, 

to  procure  order  of  substitution  of  executor,  etc.,  on  death  of 
party,  where  adverse  party  has  died  before  appeal  was  taken,     389 

to  procure  order  to  show  cause  why  judgment  should  not  be  re- 
versed, wliere  party  to  appeal  dies  and  order  of  substitution  is 
not  made  within  three  mouths  after  such  death 391 

to  obtain  order  substituting  representative  of  deceased  party  to 
appeal 393 

on  application  to  serve  notice  of  appeal  where  attorney  is  dead 

and  respondent  cannot  be  found  in  the  State 397 

relating  to  summary  proceedings  for  real  property, 

of  service  of  precept 1043 

Tclating  to  proceedings  supplementary  to  execution  against  property, 

tt)  obtaiu  order  to  examine  judgment  debtor  after  return  of  exe- 
cution   1179 

after  issuing  and  before  return  of  execution . . 1181 

to  obtain  order  for  examination  of  person,  etc.,  having  property, 
etc.,  of  judgment  debtor 1187 

to  obtain  order  permitting  payment  of  debt  to  sheriff 1191 

of  service  of  injunction  order  aud  order  requiring  debtor's  at- 
tendance for  examination 1196 

to  obtain  examination  of  judgment  debtor,  etc.,  when  execu- 
tion has  teen  issued  pursuant  to  section  1941,  Code  Civ.  Pro. .  1200 
relating  to  service  of  papers. 

of  personal  service  of  notice  or  other  paper  in  action  on  party  or 
attorney 238 

of  service  by  mail  of  paper  in  action  on  party  or  attorney 239 

on  attornej'  during  his  absence  from  his  office 240 

on  party  at  his  residence 241 

on  county  clerk  for  non-resident  party  241 

in  justice's  court  (see  above), 
relating  to  surrogates'  courts, 

of  personal  service  of  citation 1209,  1216 

to  procure  order  for  service  of  citation  upon  a  resident  of  the 
State  by  publication 1210 

of  service  of  citation  without  the  State,  and  of  publication  and 
deposit  in  post-office 1213 

of  service  of  citation  upon  infant  under  fourteen,  lunatic,  etc., 
and  upon  a  corporation 1213 

of  verification  of  written  pleadings,  etc.,  in 1216 

of  service  of  subpoena  in 1216 

in  proceedings  for  contempt  in  not  obeying  surrogate's  decree 
directing  payment  of  money,  etc 1226 

of  appraisers  as  to  days  occupied,  and  expenses  in  making  ap- 
praisal and  inventory ...   1227 

by  person  appealing,  not  a  party  to  a  special  proceeding  in.    ...   1228 

official  oath  of  executor,  administrator  or  guardian 1234 

of  subscribing  witnesses  to  will 1250 

of  handwriting  of  suDscribing  witnesses  to  will 12")1 


Index.  1459 

AFFlDAYlT—iContinned). 

of  custody  of  will 1254 

stating  objections  to  granting  letters 1260 

oath  of  temporary  administrator 1292 

of  executor,  etc. ,  to  account 1328 

on  application  to  bring  partition  action  by  infant 507 

in  action  against  unincorporated  association, 

to  move  for  substitution  on  death,  etc.,  of  officer  of,  against 
whom  action  is  brought 905 

in  action  and  proceeding  against  usurper  of  office  or  franchise, 

to  obtain  order  for  delivery  of  books  and  papers 930,  1203 

of  defendant  to  prevent  issuing  of  warrant 931,  1203 

ALIMONY : 

(See  Affidavit,  Notice,  Order,  Petition.) 
ALLOWANCE : 

by  judge  of  bail  in  defendant's  undertaking  on  arrest 13? 

of  sureties  after  justification 420 

extra  for  costs.     (See  Costs.) 
AMENDMENTS. 

(See  Affidavit,  Notice,  Order.) 
ANCILLARY  LETTERS: 

of  administration 1302 

testamentary 1300 

ANNULMENT : 

of  marriage,  forms  relating  to 665-680 

ANSWER: 

in  contempt  proceedings, 

of  accused  to  interrogatories -...  1078 

in  action  relating  to  decedent's  estate, 

by  heir  or  devisee  of  nothing  received  by  descent  or  devise 732 

on  grounds  of  demurrer, 

that  court  has  not  jurisdiction  of  the  person  of  defendant 93 

of  the  subject  of  the  action 94 

that  plaintiff  has  not  legal  capacity  to  sue 94 

that  another  action  is  pending  between  the  same  parties  for  the 

,        same  cause 95 

of  misjoinder  of  parties  plaintiff 95 

that  there  is  a  defect  of  parties 96 

containing  general  and  specific  denials 97 

setting  up  new  matter  as  a  defense  or  counterclaim 97 

setting  up  part  ial  defenses 99 

claiming  atfirmalive  judgment  99 

of  infants  in  foreclosure  suit 574 

in  action  for  a  chattel 651 

general  form 651 

in  action  upon  undertaking  in  replevin  that  chatte.  was  injured 

or  destroyed 656 

relating  to  writ  of  habeas  corpus,  etc., 

denials  by  prisoner  of  return  to  writ  of  habeas  corpus  or  cer- 
tiorari to  inquire,  etc 960 

in  justices'  courts, 

general  form 1 396 

of  title 1396 

in  matrimonial  actions, 

in  suit  for  disHolution  of  marriage  contract 683 


1460  Index. 

ANSWER— (Continued). 
in  miscellaneous  actions, 

alleging  non-compliance  with  conditions  of  policy 884 

of  coverture  of  defendant 693 

of  infancy  of  plaintiff  or  defendant 893 

of  duress 894 

of  release 894 

of  payment 895 

of  accord  and  satisfaction 895 

of  discliarge  under  the  insolvent  act 896 

of  usury 897 

of  usury  to  action  by  an  indorser  against  drawer  of  a  bill,  etc. .  897 

that  note  was  given  to  compound  a  felony 899 

that  plaintiff  is  not  a  corporation 899 

that  note  was  given  for  gambling 900 

of  statute  of  frauds  on  a  guaranty 900 

of  arbitrament  and  award 901 

of  judgment  recovered 902 

claiming  set  off , 903 

of  statute  of  limitations . .    37 

in  summary  proceedings, 

to  petition  upon  return  of  precept 1045 

in  surrogates'  courts, 

to  petition  for  probate  of  a  will 1249 

of  person  cited,  as  to  ownership  of  property  withheld  from 

executor,  etc 1305 

of  executor  to  petition  for  payment  of  claim 1303 

in  action  for  wrongs, 

in  action  for  negligence  causing  death 784 

justifying  a  charge  of  perjury 808 

that  plaintiff  committed  first  assault 825 

that  defendant  was  preserving  the  peace 825 

APPEAL : 

forms  relating  to  appeals,  specified  in  chapter  12  of  Code  Civ.  Pro. .     388 

affidavits  in.     {See  Affidavit.) 

allowance,  by  judge,  of  sureties  on 420 

judgment  on.     (See  Judginent.) 

notice  of.     (See  Notice.) 

notices  of  proceedings  in.     (See  Notice.) 

orders  in.     (See  Order.) 

undertakings  on.     (See  Undertaking.) 

waiver  of  security  on 

from  surrogate's  decree,  notice  of ^^-"' 

from  judgment  rendered  by  justice  of  the  peace 1419 

APPEARANCE : 

notice  of,  general  form ^ 

in  surrogate's  court 1214, 

1379 
in  justice's  court 

APPLICATION  : 

for  judgment.     (See  Judgment.) 

APPOINTMENT  : 

of  person  as  executor,  under  power  in  will ^^'^^ 

of  committee  of  lunatic,  etc.,  proceedings  for 109^ 


Index.  1461 

APPOINTMENT—  (Con^Tiiied). 

of  commission  to  inquire  as  to  lunacy,  etc 1090 

of  committee  of  lunatic,  etc ,    1105 

(See  Ajjldavit,  Bond,  Complaint,  Designation,  Inquisition,  Inven- 
tory, Oath,  Order,  Petition,  Precept,  iSubpcena.) 

ARBITRATION : 

list  of  forms  relating  to 1141 

submission  of  controversies  to,  short  general  form 1141 

general  submission,  full  form 1143 

special  submission  of  controversy 1144 

appointment  by  arbitrators  of  time  and  place  of  hearing,  and  notice 

to  parties     1144 

oaths  of  arbitrators 1145 

subpoena  to  appear  before  arbitrators 1 145 

award 1146 

oath  to  witness . 1146 

revocation  of  submission 1152 

(See,  also,  Affidavit,  Bond,  Complaint,  Judgment,  Notice,  Order.) 

ARREST : 

proceedings  relating  to,  in  courts  of  record 120-142 

in  justices'  courts,  list  of  forms 1381 

affidavits  relating  to.     (See  Affidavit. ) 
certificates  relating  to.     (See  Certificate.) 
notices  relating  to.     (See  iVoiice.) 
orders  relating  to.     (^qq  Order.) 
petitions  relating  to.     (See  Petition.) 
undertakings  relating  to.     (See  Undertaking.) 
warrants  relating  to.     (See  Warrant.) 

ASSESSMENT : 

by  referee,  notice  of 358 

by  cleik  on  default 353 

ASSESSMENT  OF  DAMAGES: 

writ  of.     (See  Writ  of  Assessment  of  Damages) 982 

ASSIGNMENl  : 

by  old  sheriff  to  new  sheriff 23 

to  receive!'  in  judgment  creditor's  suit , 761 

by  insolvent  debtor  to  trustees 1004 

by  insolvent  prisoner 1017,   1023 

ASSISTANCE  : 

writ  of.     (See  Writ  of  Assista7ice) 607 

ASSOCIATION  : 

unincorporated,  forms  in  action  by  or  against 903 

ATTACHMENT: 

forms  relating  to,  in  courts  of  record 1 62-208 

inventory  on 177,  1388 

orders  relating  to.     (See  Order.) 
warrant  of.     (See  Warrant.) 
certificates  on.     (See  Certificate.) 
notices  of  motion  relating  1o.     (See  Notice.) 
undei-tiiking  on.     (See  Undertaking  ) 

valuatioTi  of  ve.ssel  attached 181 

petition.s  I'elaling  to.     (See  Petition.) 

against  witness  for  not  obeying  a  sul)i)oena : 338 

for  not  obeying  writ  of  habeas  corpus  or  certiorari 956 

in  justic<!s'  court s,  li.st  of  forms  in«  1385 

ATTENDANCE  OF  WITNESS: 

foT-ms  relating  to  coiniielling 264 

ATTORNEYS  AND  COUNSELLORS: 

forma  i-elitiiig  to.     (See  Certificate,  Notice,  Oath,  Order) 3 

AUTHORITY: 

by  bail  to  arrest  defendant I'lO 

of  attorney  to  commence  action  for  recovery  of  real  property 499 

BAIL  : 

arrest  nnd,  forms  in.      (See  Arrest) 120-142 


14C2  Index. 

BILL  OF  PARTICULARS: 

form  of ,  110 

affidavit  to  obtain Ill 

notice  of  motion  for Ill 

order  for 112 

of  plaintifTa  claim 110 

of  defendant's  counterclaim 110 

BILL  OF  COSTS  (See  Costs) 1436 

BOND  (See,  also,  Undertaking) : 

and  undertaking,  forms  relating  to,  generally 247 

of  prisoner  to  admit  to  jail  liberties 21 

of  fj:uardian  before  receiving  property 83 

of  receiver 217 

in  action  or  special  proceeding,  general  form 248 

of  person  to  whom  execution  against  sheriflF  is  directed 427 

of  guardian  ad  litem  in  partition  suit 508 

of  guardian  OJi  litem  in  suit  brought  for  legacy 724 

of  receiver  in  judgment  creditor's  action 760 

of  committee  of  lunatic,  etc 1104 

or  special  guardian  in  proceeding  for  sale  of  real  property  of 

lunatic,  infant,  etc 1125 

arbitration  bond 1155 

of  executor  or  administrator 1265 

to  prevent  decree  for  payment  of  money  or  delivery  of  property  to 

executor,  etc 1308 

by  legatee  on  application  for  payment  of  legacy  within  a  year 1319 

of  executor  or  administrator  before  executing  decree  for  sale  of  real 

property 1340 

in  justice's  court,  of  third  person  on  claim  to  property  attached 1390 

official,  action  on,  forms  relating  to 767 

BOOKS  AND  PAPERS  : 

inspection  of.     (See  Affidavit,  Certificate,  Order,  Petition,  Warrant),  242 

compelling  delivery  of  to  public  officer,  proceedings  for 924,  1203 

(See,  also,  Affidavit,  Complaint,  Order,  Warraiit.) 

BURIAL  LOT  : 

notice  to  exempt  from  execution 446 

CANCELLATION : 

of  notice  of  pendency  of  action.     (See  Notice  of  Pendency  of  Action),  1446 

CARE: 

of  property  of  person  confined  for  crime.     (See  Petition,  Order) 1014 

CASE : 

forms  relating  to 319 

notice  mdorsed  upon  325 

containing  exceptions  on  trial  by  jury 321 

on  trial  by  court '. 322 

by  referee 322 

without  exceptions,  on  trial  by  jury 320 

amendments  proposed  to 327 

notice  of  settlement  of 327 

(See,  also,  Exceptions.) 

CAUSE : 

order  to  show,  general  form 235 


Index.  1463 

certificate: 

(See,  also.  Return.) 
relating  to  arrest  of  defendant, 

of  sheriff  on  surrender  of  defendant  by  his  bail .... 138 

of  deposit  of  amount  instead  of  bail 14,     136 

of  county  treasurer  of  deposit  of  such  amount  with  him  , . . ,  14,  136 
of  sheriff  of  voluntary  surrender  of  prisoner,  in  exoneration  of 

bail 141 

relating  to  attachment, 

of  sheriff  to  be  indorsed  on  copy  attachment  served  on  debtor. . .  172 
of  sheriff  of  refusal  to  certify  as  to  property  sought  to  be  attached,  173 
of  defendant's  interest  in  property,  on  demand  of  sheriff  under 

attachment 173 

relating  to  attorneys  and  counsellors, 

clerk's,  of  admission  of 4 

relating  to  writ  of  certiorari, 

judge's  certificate  of  compliance  with  order  for  bail  on  return  to 

writ  of  certiorari    ....    964 

relating  to  costs, 

of  judge  or  referee  entitling  party  to  costs  or  increased  costs  . . .  1435 
relating  to  documentary  evidence, 

by  officer  that  paper  in  his  custody  cannot  be  found. 806 

notary's  of  presentment,  etc.,  of  note,  etc 306 

notary's  of  protest  of  bill  for  non-acceptanc    307 

relating  to  execution, 

sheriff's  of  sale  of  real  property  under 463 

of  satisfaction  of  mortgage  under  which  redemption  of  real  prop- 
erty from  execution  sale  is  made 468 

of  judgment  under  which  like  redemption  is  made 469 

sheriff's  on  redemption  by  judgment  debtor,  his  grantee,  etc 471 

by  a  junior  judgment  creditor 472 

by  a  senior  judgment  creditor 473 

by  a  mortgagee 474 

relating  to  insolvent  debtors, 

of  trustee  that  assignment  has  been  made  by  insolvent  debtor  . .  1006 
of  county  clerk  of  recording  of  assignment  by  debtor  to  trustee,  1006 
relating  to  inspection  of  books  and  papers, 

by  referee  of  inspection  of  books  and  papers  by  party 247 

relating  to  jail  liberties, 

to  obtain  order  for  removal  of  sick  prisoner  to  hospital 20 

by  keeper  of  jail  upon  surrender  of  prisoner  by  his  sureties  in 

bond  given  for  jail  liberties 22 

in  justice's  court, 

of  alk)wance  of  sureties  in  replevin  bond 1394 

relating  to  action,  etc.,  by  poor  person, 

of  counsellor  at  law  annexed  to  petition  for  leave  to  prosecute  as 

poor  person 74 

relating  to  service  of  Bummona  and  complaint, 

BherifFe,  of  service  of  summona  and  complaint,  general  form 42 

on  infant  under  fourteen 42 

on  lunatic  nnd  hlH  coinniiltee -IIJ 

on   p«rpon  (Icpif^'-nntpd    by  T-cpiilfnt  of  thi"  Htiitf  dining  b'lH 
abnence  to  receive  Hcrvice  for  him ....        41} 


1464  Index. 

CERTIFICATE— {Co7ifmited). 

on  a  coi'poration 44 

on  person  designated  by  foreign  corporation 44 

wliere  piTson  so  dcsigualed  cannot  be  found 45 

on  different  defendants  at  different  times 45 

tliat  defendant  evades  service  of  summons 46 

of  change  of  residence,  etc  ,  by  appointee  of  foreign  corporation 

to  receive  service  of  summons GO 

relating  to  incoming  and  outgoing  slierifif, 

by  county  clerk  that  sheriff  has  qualified 23 

of  county  judge  that  he  is  incapable  of  acting 29 

in  surrogate's  courts, 

of  surrogate  of  his  disqualification  to  act  in  a  particular  matter.  1205 

surrogate's  of  probate  of  will 1259 

relating  to  unincorporated  associations, 

by  persons  composing  joint  stock  association  of  membership 

thereof 920 

CERTIORARI. 

(See  Writ  of  Certiorari) 950 

CHANGE  OF  NAME  OF  INDIVIDUAL  OR  OF  CORPORATION  : 

proceedings  for 1167 

(See  Affidavit,  Petition,  Order.) 
CHANGE  OF  PLACE  OF  TRIAL. 

(See  Affidavit,  Notice,  Order) 312 

CHATTEL : 

action  for  recovery  of,  forms  in 634,  1392 

(See,  also,  subjects  referred  to  under  title  Replevin.) 

action  to  foreclose  lien  on 657 

CITATION: 

general  form  of,  issued  by  surrogate 1209 

affidavit  of  service  of.     {^cq  Affidavit) 1216 

admission  of  service  of 1216 

service  ofj  by  publication,  order  for 1211 

to  executors,   etc  ,  to  show  cause  why  new  bond  or  new  sureties 

should  not  be  given  by  him 1237 

requiring  executor,  etc. ,  to  show  cause  pursuant  to  petition  of  sure- 
ties in  his  bond,  for  relief  from  responsibility 1240 

to  attend  probate  of  will 1247 

on  petition  for  revocation  of  probate  of  will 1274 

on  petition  to  obtain  probate  of  heirship 1278 

upon  petition  to  vacate  or  modify  decree  establishing  right  of  inherit- 
ance   1281 

on  petition  for  letters  of  administration 1284 

on  petition  for  revocation  of  letters  129i> 

on  petition  for  ancillary  letters • 1303 

m  proceedings  to  discover  property  withheld  from  executor,  etc 1305 

to  executor  to  show  cause  why  payment  of  claim  should  not  be  de- 
creed    1313 

pursuant  to  petition  for  payment  of  money  or  delivery  of  personal 

property  by  testamentary  trustee 1353 

upon  petition  for  appointment  of  general  guardian 1359 

to  guardian  on  petition  by  infant,  etc.,  for  revocation  of  letters 1364 


Index.  1465 

CITATION— ( Continued). 

upou  application  of  general  guardian  for  revocation  of  letters 1367 

to  guardian  upon  petition  for  judicial  settlement  of  his  account Ib72 

CLAIM: 

to  real  property,  action  for  determination  of. 608 

notice  of,  to  surplus  moneys,  on  mortgage  sale 589 

by  creditor  to  surplus  moneys  before  referee 594 

proceedings  for  payment  of,  by  executor,  etc.. 1311 

COMMENCEMENT  OF  ACTION  : 

forms  relating  to 38,  52 

CLERK : 

entry  by,  on  docket,  to  preserve  lien  of  judgment 484 

COMMISSION  FOR  EXAMINATION  OF  WITNESS  : 

forms  relating  to,  in  courts  of  record 284 

affidavit  to  obtain.     (See  Affidavit) 285 

to  examine  witness  out  of  the  State  upon  interrogatories  annexed  . . .  290 

upon  oral  questions  294 

open,  to  examine  witness 296 

letters  rogatory 302 

notice  of  motion  for 288 

order  for 289 

interrogatories  to  be  annexed  to    292 

cross-interrogatories  to  be  annexed  to 2!'3 

notice  of  settlement  of  interrogatories 294 

notice  of  examination  upon  oral  questions,  and  of  taking  deposition,  297 

stipulation  that  commission  issue 299 

notice  of  motion  for  suppression  of 30O 

order  for  suppression  of 301 

in  justice's  court, 

proceedings  for 1404 

form  of 1405 

(See  Affidavit,  Consent,  Notice.) 

COMMISSIONERS'  REPORT: 

in  partition 52.5 

that  sale  of  property,  or  part  thereof,  is  necessary 528 

of  admeasurement  of  dower,  etc  551 

COMMITTEE  OF  IDIOT,  LUNATIC.  Etc. 

(See  Ajypointment  of  Committee,  etc.) 1090 

COMMITMENT : 

of  person  refusing  to  obey  writ  of  habeas  corpus  or  certiorari 956 

mandate  of,  for  criminal  contempt 1 

(See,  also,  Warrarit.) 
COMPELLING  ATl'ENDANCE,  ETC.  : 

of  witness,  forms  relating  to 264 

COMPLAINT : 

in  action  to  annul  marriage, 

by  woman  to  declare  marriage  contract  void,  entered  into  by  her 

when  under  fourto(;n  years  of  age (5(5(5 

to  annul  marriage  contracted  under  age  of  legal  consent (567 

on  ground  that  former  husband  or  wife  was  living (WIH 


fjf  idiot. 


669 


of  lunatic  in  action  by  her  after  restoration  to  sound  mind. .  670 

same  in  action  by  relative  of  lunatic    (JTO 

on  the  ground  of  fraud  in  obtaining  consent 671 

on  ground  of  physical  incapacity 672 

184 


1466  Index. 

COMPLAI  NT— ( Ctwfin  wed) . 

in  action  relating  to  arbitration, 

against  a  party  revoking  a  submission  to  arbitration 1153 

m  action  on  bond  of  administrator,  etc., 

general  form 124o 

by  successor,  after  revocation  of  letters 1244 

setting  forth  copy  of  instrument 113 

in  action  to  compel  determination  of  claim  to  real  property, 

general  form ^^^ 

to  dctermme  widow's  dower 612 

by  and  against  committee  of  lunatic,  etc., 

general  form  by   1106 

general  form  agiiinst  1107 

in  contempt  proceedings, 

on  undertaking  given  for  appearance  of  party  charged  with  con- 
tempt   1079 

for  contribution, 

in  action  for   contribution  by  one  of  two  or  more  judgment 

debtors 479 

by  heir,  devisee,  etc.,  of  joint  judgment  debtor,  who  has  re- 
deemed from  execution  sale 480 

in  action  relating  to  corporation, 

allegations  of  incorporation  in 709 

in  action,  by  creditor,  for  sequestration  of  property,  etc.,  after 

return  of  execution  unsatisfied 710 

in  suit  by  creditor  or  stockholder,  after  demand  upon  attorney- 
general,  to  commence  action 711 

by  attorney-general  to  vacate  act  of  incoiporation 714 

to  annul  charter  of  corporation,  under  section  1798  of  Code.  Civ. 

Pro 715 

against  certain  county,  etc.,  officers, 

by  tax-payer  against  public  officer,  agent,  commissioner,  etc., ....     908 

by  town  officer  under  section  1926,  Code  Civ.  Pro 910 

in  action  relating  to  estate  of  decedent, 

in  action  by  or  against  executor  or  administrator 721 

against  executor  or  administrator  for  legacy  or  distributive  share,     722 

against  next  of  kin  or  legatee  for  debt  of  decedent 728. 

against  heirs  or  devisees  for  debt  of  intestate  or  testator 730 

under  subd.  1  of  section  1861  of  Code  Civ.  Pro.,  to  establish 

will 733 

under  subd.  2  of  section  1861,  of  Code  Civ.  Pro.,  to  establish  a 

will 735 

demanding  both  interlocutory  and  final  judgment,  in  action  triable 

by  the  court , 87 

in  proceedings  to  discover  death  of  tenant  for  life  of  real  property, 

for  rents  and  profits  by  person  evicted 1089 

in  action  to  dissolve  marriage  contract. 

general  form 681 

in  action  for  dower, 

against  heirs  at  law  in  possession 547 

for  damages  against  heir,  who  has  aliened  land,  after  recovery 

of  dower 548 

for  recovery  of  money  falling  due  for  dower 556 

to  procure  a  sale  of  property  for  unpaid  installments  of  dower. .     557 


Index.  1467 

COMPLAINT— ( Continued), 
for  failure  of  title, 

iu  actiou  to  recover  purchase  money  when  purchaser  is  evicted. .  477 

general  form  of    86 

in  action  to  foreclose  lien  upon  chattel, 

to  foreclose  a  chattel  mortgage 657 

for  foreclosure  of  lien  by  pledge 659 

in  action  to  foreclose  mortgage, 

general  form 565 

for  foreclosure  of  infant's  mortgage,  executed  pursuant  to  order 

of  court 570 

to  redeem  mortgaged  premises  by  heirs  at  law  against  mortgagee 

in  possession 601 

for  strict  foreclosure 598 

on  injunction  undertaking 157 

against  and  between  joint  debtors, 

to  charge  defendant  not  personally  summoned 916 

against  partner  not  sued 921 

in  judgment  creditor's  action, 

to  procure  judgment  directing  sale  of  property  exempted  as  a 

homestead 447 

general  form  of  complaint  in 737 

to  set  aside  a  chattel  mortgage  given  by  corporation  in  contemp- 
lation of  insolvency 741 

against  judgment  debtor  and  his  trustee,  to  reach  the  trust  fund 

or  income  thereof  .    747 

against  judgment  debtor  and  his  assignee  to  set  aside  assignment,  748 
against  judgment  debtor  to  set  aside  fraudulent  judgment  and 

sale 750 

supplemental  complaint  in 766 

in  action  by  infant 666 

in  action  injustice's  court, 

general  form 1396 

in  action  against  constable  for  not  returning  execution 1417 

in  action  for  penalty  for  suffering  animals  to  run  at  large  upon 

highway 1425 

for  miscellaneous  causes  of  action, 

in  action  to  set  aside  security  as  usurious 851 

upon  judgment  of  court  of  record 856 

of  justice  of  the  peace 858 

in  action  on  bond  for  payment  of  money 858 

for  payment  of  money  setting  forth  breaches  of  condition. . .  859 

other  than  for  payment  of  money 860 

to  perform  covenants  in  another  instrument 861 

for  annuity. . 861 

by  accommodation  maker  of  note  who  has  paid  tlie  same  . .  862 

by  guarantor  against  original  debtor  after  payment  of  debt.  H63 

on  a  promise  to  save  surety  harmless 8()3 

on  a  guaranty 864 

in  actions  on  notes  and  bills. 

against  maker  of  note 866 


1468  Index. 

CO'hlPLA.mT—{Co7itimied). 

against  maker  and  endorser  of  note 866 

on  ciieck  by  payee  against  maker 867 

by  bearer  against  drawer 868 

against  maker  and  iudorser 869 

on  bill  of  exchange  by  drawee  against  acceptor 869 

by  indorser  against  acceptor 870 

by  acceptor  against  drawer 870 

against  acceptor,  drawer  and  indorser 871 

against  maker  for  non-acceptance 871 

on  foreign  bill,  by  drawer  or  indorser  against  acceptor. .  872 

on  foreign  bill,  by  indorser  against  drawer 873 

on  foreign  bill,  by  indorser  against  acceptor  supra  pro- 
test    874 

in  action  for  work,  labor  and  services 875 

for  fees  of  attorney,  etc 875 

for  bill  of  surgeon  or  physician 876 

for  work,  labor  and  materials  in  building  house 876 

for  goods  sold  and  delivered 877 

on  account  stated 878 

for  use  and  occupation 878 

for  money  had  and  received 879 

for  money  lent '.....  879 

on  undertaking  given  on  appeal 889 

by  executor  on  policy  of  life  insurance  881 

on  policy  of  insurance  on  goods,  etc 883 

against  lessee  for  rent 885 

for  non-deliver}'-  of  goods  sold 886 

for  trespass  in  taking  goods 886 

on  covenant  for  quiet  enjoyment  in  deed 887 

on  covenant  of  seisin 888 

under  civil  damage  act 889 

against  mechanic  for  doing  his  work  badly 891 

for  breach  of  warranty  of  a  horse 892 

by  or  against  association  consisting  of  seven  or  more  persons,  904 

against  members  of  such  association 906 

in  action  for  nuisance, 

general  form  62*^ 

for  manufacturing  candles  near  a  dwelling-house    848 

for  partition  of  real  property, 

among  heirs  at  law '^^^ 

held  under  devise  containing  provisions  for  trust  estate  and  re- 
mainders    ^1* 

in  action  by  the  people  for  fine,  penalty,  or  forfeiture,  or  upon  a 
forfeited  recognizance, 

on  recognizance  after  indictment  found 937 

after  complaint  made  and  before  indictment  found 939 

in  action  by  private  person  for  penalty  or  forfeiture, 

for  penalty  and  damages,  given  by  section  1436,  Code  Civ.  Pro., 


Index.  1469 

COMPLAINT— ( Continued). 

against  sheriff  for  selling  real  estate,  contrary  to  chapter  13  of 

Code  Civ.  Pro 775 

for  penalty  given  by  statute  to  anj  person  who  sues  therefor. . . .  777 
in  action  to  recover  a  chattel, 

by  claimant  against  sheriff 643 

general  form 649 

for  wrongful  detention  of  chattel 650 

against  sureties  on  undertaking  given  by  defendant  to  procure 

return  of  chattel 655 

on  undertaking  given  by  plaintiff  on  replevin  of  chattel 656 

for  recovery  of  real  property  (Xo.  1) 486 

same  ( >f o.  2)  487 

same  (No.  3) 488 

by  grantee  in  the  name  of  his  grantor  of  land  held  adversely 489 

of  real  property  held  under  lease  in  fee,  when  right  of  entry  is 

reserved  for  want  of  distress 490 

in  other  actions  concerning  real  property, 

against  person  in  possession  as  life-tenant  and  holding  over 622 

by  joint-tenant  or  tenant  in  common  to  recover  his  proportion  of 

rents  and  profits  of  real  estate 623 

for  cutting  di;wn  trees,  etc 623 

for  forcible  entry  and  detainer 634 

against  party  in  possession  under  conveyance  from  defendant, 
made  after  filing  of  lis  pendens,  in  action  of  ejectment  or  for 

dower 633 

in  action  for  separation, 

general  form 691 

in  action  upon  sheriff's  bond, 

general  form 760 

in  action  relating  to  specific  performance,  etc.,  by  infant,  etc., 

to  compel  infant  or  lunatic,  etc. ,  to  convey 1116 

to  compel  specific  performance  of  contract  by  infant,  etc 1117 

in  action  founded  upon  spoliation  or  other  misappropriation  of  public 
property, 

for  public  funds  illegally  obtained,  converted,  etc 941 

for  suing  vexatiously  in  the  name  of  another  or  unknown  person 780 

in  summary  proceedings, 

for  recovery  of  damages  sustained  by  dispossession,  where  final 

order  in,  is  reversed  on  appeal 1056 

supplemental  complaint  766 

verification  of.     (See  Affidavit.) 
in  action  for  waste, 

by  devisee  of  lessor  against  tenant ^^^ 

by  heir  at  law  of  lessor ^^^ 

by  lessor  against  lessee " '  ' 

by  remainder-man  against  life-tenant ''"• 

against  tenant  in  dower "1' 

by  ward  against  guardian '•^7 

by  grantee  of  real  property  sold  under  execution 618 


1470  Index. 

COMPLAINT— ( Continued). 

by  joint-tenant  or  tenant  in  common  against  his  co-tenant 619 

against  the  usurper  of  olHce  or  franchise, 

against  person  usurping,  etc.,  public  office 924 

against  persons  acting  as  a  corporation,  without  being  duly  in- 
corporated, etc 9~7 

for  damages  after  final  judgment  in  action  against  person  usurp- 
ing, etc. ,  public  otlice 934 

in  action  to  vacate  letters  patent 936 

in  proceeding  to  compel  deliveiy  of  books  and  papers  by  public 

officers 924,  1203 

in  actions  to  recover  damages  for  wrongs, 

for  negligence, 

for  causing  death  by  negligence 780 

same  complaint,  another  form 783 

for  injury  caused  by  negligence 785 

against  carrier  for  negligence  causing  loss  of  box 786 

for  negligence  in  setting  fire  on  defendant's  lands,  so  that  it 

spread  into  plaintiff's  farm  and  destroyed  his  trees,  etc 787 

lor  one  vessel  running  foul  of  another 788 

against  an  attorney  for  negligeull}^  conducting  a  cause  to  trial 

without  proper  evidence 700 

for  negligently  defending  action 791 

for  negligence  in  investigating  title  for  purchase  of  property,  793 

for  the  purpose  of  a  loan  thereupon 794 

against  physician  and  surgeon  for  malpractice 796 

against  an  inn-keeper  for  negligence 797 

against  a  bailee  for  negligence 799 

against  the  owner  of  a  coach  for  negligence  of  himself  and  his 

servant  in  driving  the  same  against  the  plaintiff's  coach 800 

for  slander, 

imputing  unchastity  to  a  woman .  8(  2 

general  form,  for  words  actionable  in  themselves 803 

statement  of  special  damages  in 805 

in  indirectly  accusing  plaintiff  of  a  specific  offense 806 

where  the  words  are  spoken  ironically 807 

where  it  is  to  be  collected  from  question  and  answer 807 

of  a  person  in  his  trade  by  calling  him  a  rogue,  etc 809 

of  title 811 

for  libel, 

general  form 812 

containing  distinct  passages  of  scandalous  nwrtter 814 

in  a  letter 815 

for  crim.  con. ,  with  plaintiff's  wife 8115 

for  debauching  daughter  or  servant  of  plaintiff 816 

for  seduction  of  plaintiff's  daughter 817 

for  harboring  and  concealing  the  plaintiff's  wife 818 

for  keeping  dog  used  to  bite  mankind 819 

for  keeping  dog  used  to  bite  sheep  or  other  animals 820 

for  breach  of  promise  to  marry 820 

for  false  imprisonment , 822 


Index.  1471 

COMFLAmT—iConfmued). 

for  assault  and  battery 823' 

auotlier  ioim 825 

for  malicious  prosecution, 

for  maliciously  suing  plaintiff  six  times  before  a  justice 826 

for  maliciou.-ly  causing  the  indictment  of  the  plaiuliff 828 

for  maliciously  causing  the  arrest  of  the  plaintiff  on  a  charge  of 

stealing 839 

for  fraud  iu  sales, 

for  fraudulent  concealment  in  the  sale  of  a  horse 830 

for  a  false  warranty  of  a  horse 831 

on  a  sale  with  all  faults,  where  fraudulent  means  are  used  to 

prevent  liie  jnirchaser  from  discovering  delects,  etc  ,  832 

for  falsely  and   fraudulently^  affirming  that  he,   the  defendant, 

owned  the  horse 833 

for  false  representations, 

for  falsely  representing  a  third  person  as  fit  to  be  trusted,  etc. . .  834 

for  false  representations  made  to  induce  a  purchase  of  real  estate,  836 

where  false  representations  have  been  made  to  mduce  credit. . . .  837 
against  sheriff, 

for  false  return 839 

for  not  making  return 840 

for  an  escape 840 

where  arrest  has  been  made  under  order  of  arrest  and  action 

is  brought  after  judgment 841 

on  a'l  escape  from  custody  under  order  of  arrest,  when  the 

action  is  brought  before  judgment 843 

for  convei  sion  of  pej'sonal  propertj'^ 844 

in  action  brought  by  executor 846 

for  arresting  a  witness,  while  att  nding  as  such,  upon  subjjoena. . .  847 

for  manufacturing  caudles  near  dwelling  house 848 

COMPUTATION: 

by  referee,  notice  of 358 

by  cleik  tm  eutiy  of  judgment  by  drfault 353 

CONFESSION  OF  JUDGMENT: 

in  justice's  eouil 1411 

in  coui'ts  of  lecdi'i! 377 

(See,  also,  titles  J udgvierit,  Statement.) 
CONSENT: 

by  person  designated  by  resident  for  service  of  summons  upon  dur- 
ing his  absence  from  Uiuted  States 55. 

revocation  of  such  consent 57 

by  person  designated  I)y  foreign  corporation  for  service  of  summons 

upon .58 

revocation  of  such  con.senl - 59 

certificate  of  change  of  oflice  or  residence  by  such  ])erson  appointed 

by  foreign  corporation OO 

by  plaintiff's  attorney  to  change  of  place  of  tri.il  (o  proper  county. .  313 

of  party  to  accept  gro.ss  sum  in  lieu  of  dower  in  partition  .suit 535 

to  accei)t  gross  sum  in  satisfaction  of  dower  in  action  for  dower 558 

of  plaintiff,   in   action  for  dower,   to  take  a  distinct  parcel  as  bcr 

dower  in  lieu  of  gross  sum 5(53 

of  creditors  to  discliarge  of  insolvent  debtor 905 


1472  Index. 

CONSENT— (Continued). 

of  owner  of  dower  estate  to  receive  gross  sum  in  satisfaction  thereof 
in  proceeding-  for  disposition  of  real  jiroperty  of  infant,  etc 1140 

of  special  guardian  in  surrogate's  court  to  his  appointment 1215 

of  widow  to  accept  gross  sum  in  lieu  of  dower  in  proceeding  for  dis- 
position of  real  property  of  decedent 1348 

of  person  to  act  as  guardian  ad  litem  of  infant  plaintiff  in  justice's 

court 1379 

of  infant  defendant  in  justices'  court 1380 

of  parties  to  issuing*  commission  for  examination  of  witnesses  upon 
oral  questions  in  justice's  court 1406 

CONSOLIDATION  OF  ACTIONS  : 

forms  relating  to 251 

CONTEMPT : 

criminal,  mandate  of  commitment  for 1 

record  of  conviction  for,  in  justice's  courts 1375 

CONTEMPTS  OTHER  THAN  CRIMINAL : 

proceedings  in,  in  courts  of  record 1057 

(See  Affidavit,  Answer,    Certificate,    Complaint,  Interrogatories,  Notice, 
Return,  Warrant,  Writ  of  Habeas  Corpus.) 

CONTINUING  ACTION. 

proceedings  relating  to,  list  of  forms  in 229 

affidavits  for.     (See  Affidavit) 229,     230 

notices  in.     (See  Notice) 231 

orders  continuing.     (See  Order) 231-234 

CONTRIBUTION : 

enforcement  of,  under  execution  sale 477 

CONVEYANCE. 

(See  Deed,  Assignment,  Release.) 

CONVEYANCE,  Etc.,  OF  PROPERTY: 

forms  relating  to 220 

under  execution  sale 460 

CORPORATION : 

voluntary  dissolution  of 1170,  1176 

change  of  name  of. 1167 

designation  by  foreign,  of  person  on  whom  summons  may  he  served.   57-60 

(See,  also.  Designation.) 
action  relating  to 709 

COSTS : 

foi-ms  relating  to 1435-1449 

awarding  and  enforcing  payment  of 1435 

fixing  amount  of 1436 

undertaking  for 1445 

extra  allowance,  notice  of  motion  for 1437 


Index.  1173 

COSTS— (Continued). 

same,  ia  surrogates*  coarts 1233 

order  for 1438 

bill  of,  and  disbursements,  in  action,  etc 1436 

on  foreclosure  by  advertisement 1162 

notice  of  taxation  and  retaxation  of 1440 

affidavit  of  disbursements  upon  taxation  of. 1440 

of  attendance,  etc.,  of  witnesses,  on  taxation  of. 1441,  1442 

to  obtain  security  for 1443 

order  requiring  security  for 1444 

undertaking,  pursuant  to  order 1445 

on  confession  of  judgment 380 

in  surrogates'  courts 1333 

COUNTERCLAIM : 

admission  of,  by  plaintiff 100 

j  udgment  for  excess  of  plaintiff's  claim  over 101 

demurrer  to 101 

answer  setting  up  new  matter  as 98 

reply  to,  general  form  of. 101 

notice  of  application  for  judgment  when  no  reply  is  made  to 102 

order  of  reference,  or  for  writ  of  inquiry,  where  no  reply  is  made  to.  149 

several  avoidances  to  same.    1 04 

bill  of  particulars  of. Ill 

(See,  also.  Pleading,  Notice,  Reply.) 

COUNTY  CLERK: 

certificate  by,  that  sheriff  has  qualified 23 

entry  by,  on  docket  to  preserve  lien  of  judgment 484 

COUNTY  COURT : 

removal  of  cause  from,  to  Supreme  Court  (See  Removal  of  Cause) ...       28 
petition  to,  for  order  remitting  fine  or  penalty,  or  forfeiture  of  recog- 
nizance        33 

order  of,  upon  such  petition  remitting  fine,  etc 34 

petition  to,  for  remission  of  fine  imposed  by  court  of  special  sessions 

or  justice  of  the  peace -, 35 

order  of,  remitting  fine,  pursuant  to  last  above  petition  and  dis- 
charging prisoner 35 

COUNTY  JUDGE: 

certificate  of,  that  he  is  incapable  of  acting 29 

affidavit  to  apply  for  removal  of  cause  or  proceeding  to  Supreme 
Court,  in  case  of  incapacity  of 29 

COUNTY,  TOWN  AND  MUNICIPAL  OFFICERS  : 

forms  in  actions  by  or  against 908 

COURT  OF  APPEALS : 

remittitur  from  (See  Remittitur) 26 

185 


1474  Index, 

creditor's  suit: 

forms  relating  to,  list  of 736 

complaints  in.     (See  Coinplaint.) 
orders  in.     (See  Order.) 

bond  of  receiver  in 760 

general  assignment  to  receiver 761 

judgments  in.     (See  Judgment.) 
petitions  in.     (See  Petition.) 

CRIME : 

care  of  property  of  person  confined  for 1026 

CRIMINAL  CONTEMPTS: 
in  courts  of  record, 

mandate  of  commitment  for 1 

in  justices'  courts, 

warrant  of  ai-rest  for 1374 

record  of  conviction  for 1375 

warrant  of  commitment  for 1376 

CROSS-INTERROGATORIES : 

to  be  annexed  to  commission 293 

DAMAGES : 

order  of  reference  to  ascertain 103 

notice  of  motion  for  reference  to  ascertain 102 

DEATH : 

of  life-tenant  of  real  property,  discovery  of,  proceedings  for 1082 

or  transfer  of  interest,  or  disability  of  party  to  action,  proceedings  on.     229 

DEBTORS : 

forms  in  actions  and  relating  to  rights  of  action  against  and  between 
joint 914 

DECEDENT'S  ESTATE  : 

actions  relating  to 721 

DECISION : 

of  judge,  ou  issue  of  fact,  tried  by  the  court 331 

of  court  on  trial  of  issue  of  law 332 

in  action  for  chattel 653 

of  .surrogate  on  trial  before  him  of  issue  of  fact 1220 

DECREE : 

(See  Judgment.) 
of  surrogate's  court,  granting  leave  to  issue  execution  against  prop- 
erty of  deceased  judgment  debtor 444 

of  surrogate  after  expiration  of  time  for  filing  new  bond  by  execu- 
tor, etc 1238 

on  return  of  citation  issued  upon  petition  by  sureties  in  bond 
of  executor,  etc.,  to  be  relieved  from  responsibility 1241 


Index.  1475 

DECREE— {Continued) . 

admitting-  will  to  probate  and  record 1255 

admitting' lost  or  destroyed  will  to  probate 1257 

upon  objections  to  issuing'  letters  to  executor  named  in  will 1263 

setting  aside  a  will 1258 

revoking  probate,  or  confirming  probate  and  dismissing  petition .. . .  1275 

establishing  right  of  inheritance 1279 

awarding  administration , 1285 

revoking  letters  on  failure  to  give  bond 1297 

awarding  possession  of  property  withheld  to  executor,  etc 1306 

dismissing  petition  in  proceeding  for  property  withheld  from  execu- 
tor, etc.,  on  filing  of  answer 1315 

for  payment  of  claim  by  executor,  etc 1316 

for  payment  of  a  legacy 1318 

for  payment  and  distribution  on  final  accounting  of  executor,  etc.. . .  1331 
directing  mortgage  or  lease  of  real  property  of  decedent  for  pay- 
ment of  debts,  etc 1336 

directing  sale  of  real  property  of  decedent  for  payment  of  debts, 

etc 1338 

supplementary  in  same  proceeding 1346 

dismissing  petition  on  filing  of  answer  in  proceeding  to  compel  pay- 
ment of  money  or  delivery  of  personal  property  by  trustee 1354 

appointing  general  guardian 1360 

revoking  letters  of  guardianship  on  petition  of  infant,  etc 1365 

same  on  petition  of  general  guardian 1368 

granting  ancillary  letters  of  guardianship 1370 

DEED: 

by  special  guardian  of  infant , 1135 

of  sheriff  on  sale  under  execution 475 

of  sheriff  or  referee  in  action  to  foreclose  mortgage 683 

of  executor,  etc.,  in  proceeding  for  sale,  etc.,  of  real  estate  of  de- 
cedent   1343 

(See,  also,  Assignment,  Release.) 
DELIVERY,  Etc.  : 

of  property,  forms  relating  to 220 

of  books  and  papers,  proceeding  to  compel  by  public  officer...  924,  1203 
(See,  also.  Affidavit,  Complaint,  Order,  Warrant.) 

DEMAND : 

of  copy  complaint 40 

of  copy  of  account 109 

of  defendant  for  change  of  place  of  trial 312 

DEMURRER : 

to  complaint,  on  ground  that  court  has  not  jurisdiction  of  person  of 

defendant 88 

on  ground  that  plaintiff  has  not  legal  capacity  to  sue 88 

on  ground  that  another  action  is  pending  between  same  parties 

for  same  cause ; 89 

on  gfround  of  misjoinder  of  ]>arties  plaintiff. 89 


1476  Index. 

DEMURRER—  {Co7itinu€d). 

to  complaint,  on  ground  of  defect  of  parties 90 

on  ground  that  causes  of  action  have  been  improperly  united. . .  90 
on  ground  that  complaint  does  not  state   facts  sufficient  to  con- 
stitute a  cause  of  action 90 

to  reply, 

on  ground  that  it  is  insufficient  in  law  on  the  face  thereof 91 

to  answer, 

on  ground  of  insufficiency  in  law  to  counterclaim,  where  defend- 
ant demands  an  affirmative  judgment 91 

order  sustaining.     (See  Order) 92 

overruling.     (See  Order) 92 

judgment  upon.     (See  Judgment) 365 

to  writ  of  alternative  mandamus 974 

to  return  to  writ  of  alternative  mandamus , 974 

DEPOSITION : 

affidavits  relating  to,  list  of.     (See  Affidavit) 272,  284 

orders  for,  list  of,     (See  Ordei') 272,  284 

notices  relating  to,  list  of.     (See  Notice) 284 

subpoenas  relating  to.     {See  SubpcBrm) 304,  805 

of  party  or  expected  party,  and  return  by  judge  or  referee 281 

stipulation  for  taking 280 

of  subscribing  witness  to  will 1250 

DEPOSIT : 

delivery  or  conveyance  of  property,  forms  relating  to 220 

DEPOSIT  IN  COURT. 

(See  Affidavit,  Certificate,  Direction,  Notice,  Order) 136,  137,  150,     189 

223      401 
DESIGNATION  : 

by  resident  of  person  on  whom  summons  may  be  served  during  his 

absence .* 55 

revocation  of  same 56 

by  foreign  corporation  of  person  on  whom  summons  may  be  served,       57 

revocation  of  such  designation 59 

certificate  by  appointee  of  foreign  corporation  of  change  of  residence,       60 
DETERMINATION  OF  CLAIMS  TO  REAL  PROPERTY: 

forms  in  action  for 608 

DIRECTION : 

by  defendant  to  sheriff  to  pay  amount  of  deposit  on  arrest  to  third 

person 137 

by  bail  to  arrest  defendant 140 

DISABILITY,  Etc., 

of  party  to  action,  proceedings  on 229 

DISBURSEMENTS  : 

(See  Costs) 1440 

DISMISSAL  OF  COMPLAINT : 

affidavit  to  apply  for,  when  not  served  pursuant  to  demand  , 85 


Index.  1477 

discovery  of  books,  documents  and  papers. 

(See  Inspection  of  Books,  etc. ) 242 

DISCOVERY  OF  DEATH  OF  LIFE  TENANT. 

(See  Affidavit,  Complaint,  Order,  Notice,  Petition,  Referee's  Report),  1082 

DISCOVERY  OF  PROPERTY  WITHHELD  FROM  EXECUTOR,  Etc.  : 

proceeding-  for 1303 

(See  Answer,  Bond,  Citation,  Decree,  Order,  Petition,  Warrant.) 

DISMISSAL  OF  COMPLAINT  : 

for  failure  to  proceed  in  action 258 

DISPOSITION   OF   REAL   PROPERTY  OF   DECEDENT  FOR  PAY- 
MENT OF  DEBTS,  Etc.  : 

proceedings  for 1333 

report  of  sale  by  executor,  etc 1341 

(See,  also,  Bond,  Decree,  Deed,  Order,  Notice,  Petition.) 

DISPOSITION  OF  REAL  PROPERTY  OF  INFANT,  IDIOT,  Etc.  : 
(See  Bond,  Complaint,  Consent,  Deed,  Notice,  Order,  Petition,  Refer- 
ee's Report,  Release.) 

forms  relating  to,  list  of 1115 

report  of  special  guardian  oi*  committee  of  agreement  to  sell 1131 

final  report  of  special  guardian 1138 

DISSOLUTION  OF  CORPORATION  : 

voluntary 1170 

DIVORCE : 

complaint  for  dissolution  of  marriage  contract.     (See  Complaint  in 

Matrimonial  Actions.) 681 

complaint  in  action  for  separation 691 

affidavits  in  suit  for.     (See  Affidaint  in  Matrimonial  Actions. ) 
orders  in  suit  for.     (See  Order  in  Matrimonial  Actions.) 

answer  in 683 

judgment  of.     (See  Judgment.) 

report  in  suit  for.     (See  Referee's  Report.) 

petitions  in.     (See  Petition.) 

forms  in  action  for  absolute 681-691 

forms  in  action  for  separation 691-697 

forms  in  action  to  annul  mai-riage 665-680 

forms  in  matrimonial  actions  generally 698-703 

DOCKET : 

entry  of  clerk  on,  to  preserve  lien  of  judgment 484 

DOCUMENTARY  EVIDENCE. 

(See  Certificate,  Affidavit) 306 

DOWER : 

forms  in  action  relating  to,  list  of 546 

affidavits  in  suit  for.     (See  Affidavit.) 

complaints  for.     (See  Complaint  ) 

judgment  in  suit  for.     (See  Judgment.) 


1478  Index. 

DOVfER—iCoydimied). 

order  in  suit  for.     (See  Order.) 

release  of.     (See  Release.) 
DRUNKARD : 

forms  in  proceedings  for  appointment  of  committee  of  habitual 1090 

EJECTMENT: 

action  for,  forms  in 485 

ELECTION  : 

to  treat  unverified  pleaiiing  as  a  nullity,  notice  of 109 

ENLARGEMENT : 

of  time  for  proceeding  in  action 236,     238 

ENTRY : 

by  clerk  on  docket  to  preserve  lien  of  judgment 484 

EVIDENCE : 

of  attorney's   authority   to   commence   action   for   recovery  of  real 
property 499 

forms  relating  to 264 

EXAMINATION : 

of  party  or  person  expecting  to  be  party  as  witness  before  trial,  affi- 
davits relating  to.    i^&Q  Affidavit) 272 

order  for.     (See  Order) 272 

deposition  on.     (See  Deposition) 272 

of  a  witness  out  of  the  State,  by  commission,  affidavit  on  motion  for. 
(See  Affidavit) 284 

of  a  witness  out  of  the  county,  by  commission,  in  suit  before  justice 
of  the  peace,  affidavit  on  motion  for.     (See  Affidavit) 1404 

in  supplementary  proceedings.     (See  Supplementary  Proceedings) . .    1178 
EXCEPTIONS  : 

forms  relating  to 319 

notice  of,  to  findings  of  court  or  referee 319 

notice  of  settlement  of 425 

bill  of 325 

amendments  to 327 

(See,  also,  Case.) 
EXECUTION  : 

forms  relating  to 425 

against  property, 

general  form 428 

on  judgment  of  justice  of  the  peace,  docketed  with  county 

clerk 429,  1418 

when  warrant  of  attachment  has  been  levied  by  sheriff 430 

against  real  and  personal  property  in  hands  of  executor,  etc 431 

indorsement  on,  against  executor  or  administrator 432 

indorsement  on,  against  the  survivors  of  several  judgment  debtors,  445 

notice  to  exempt  burial  lot  from  sale  under 446 

indorsement   upon,  issued   to  county  where  mortgaged  property  is 

situated,  where  judgment  is  for  debt  secured  by  mortgage 460 

under  subd.  1  of  section  1731,  Code  Civ.  Pro 433 

for  delivery  of  possession  of  a  chattel  and  to  satisfy  a  sum  conting- 
ently awarded  against  the  judgment  debtor 434 

for  delivery  of  possession  of  real  property,  or  a  chattel,  with  damages,  436 


Index.  1479 

ISXECVTWN— (Continued) . 

upon  money  judgment  in  action  against  unincorporated  association..     906 

against  the  person  in  courts  of  record 435 

in  justices'  courts, 

in  replevin,  under  section  2931,  Code  Civ.  Pro 1395 

upon  minute  of  conviction  of  defaulting  witness 1403 

upon  judgment  for  money 1414 

renewal  of , 1415 

upon  judgment  in  action  for  a  chattel 1413 

proceedings  supplementary  to 1178,  1200 

(See  Affidavit,  Indorsement,  Notice.) 
EXECUTOR : 

(See  Letters  Testamentary,  Oath,  Renunciation,  Appointment,  Objections.) 

judicial  settlement  of  account  by.    (See  Petition,  etc.) 1321 

discovery  of  property  withheld  from.    (See  Discovery) 1303 

objections  to  granting  letters  to 1260-1264 

payment  of  claim  or  legacy  by,  application  for 1311 

action  by  or  against 721 

EXEMPT  PROPERTY : 

petition  to  compel  executor,  etc.,  to  set  aside 1321 

EXTENSION  : 

of  time  for  proceeding  in  action 236-238 

EXTRA  ALLOWANCE: 

(see  Costs)  in  surrogate's  court 1333 

EAILDRE; 

of  title  under  execution  sale,  remedies  for  forms  relating  to 477 

FINDINGS  : 

rf  court  of  referee 331,     339 

exceptions  to  such  findings 319 

(See  Exceptions.) 

FINE: 

forms  in  action  for,  by  people , 936 

proceedings  to  impose  ujion  and   collect   from  jurors  for  failure  to 

attend,  etc 1410 

warrant  for  collection  of,  imposed  by  court  of  record 1080 

FORECLOSURE : 

of  mortgage,    forms  in,  (See  Mortgage,  Mortgage  Foreclosure  by  Ad- 
vertisement')   fJ64,  1156 

of  lien  on  chattel 657 

FOREIGN  JURY  : 

notice  by  sheriff  to  clerk  or  commissioners,  of  order  for 344 

order  for 34') 

FORFEITURE  : 

action  ft)r,  by  private  person,  forms  in 774 

by  people,  forms  in 936 

FRANCHISE,  OR  OFFICE  : 

action  against  usurper  of,  forms  relating  to 924 

FUNDS: 

pn>)lic  complaint  for,  when  illegally  obtained  or  converte<l 941 

GUARDIAN  AD  LITEM  FOR   INFANT,  Etc.  : 

(See  Infants.) 
general  form  of  answer  by 574 

consent  to  act  as,  in  justices' courts 1379,   1380 


1480  Index. 

GUARDIAN  AD  LITEM  FOR  INFANT,  F.TC.—{Contimied). 

ap[)oiiitment  of,  in  surrogatea' courts 1214 

appointment  of,  in  justices'  courts 1380 

complaint  by 666 

GUARDIAN,  GENERAL  : 

proceedings  for  appointment  of 1356 

letters  of  guardianship 1362 

(See   Account,  Affodavit,  Bond,  Citation,  Decree,  hiventory,  Order, 
Petition.) 

complaint  by ""O 

GUARDIAN  APPOINTED  BY  WILL  OR  DEED  : 

petition  for  security  to  be  given  by 1373 

GUARDIAN,  SPECIAL: 

(Se    Disposition  of  Meal  Property  of  Infants,  etc.) 
HABITUAL  DRUNKARDS : 

forms  in  proceedings  for  appointment  of  committee  of 1090 

for  disposition  of  real  pro])prty  of    1115 

sale,  etc.,  of  real  property  of 1115 

HABEAS  CORPUS: 

to  testify 948 

affidavit  to  procure  same 949 

undertaking  on  issuing 947 

to  inquire  into  cause  of  detention,  forms  relating  to 950 

(See,  also,  Writ  of  Habeas  Corpus.) 
HEARING  BEFORE  REFEREE : 

notice  of 311 

HEIRSHIP : 

proof  of.    (See  Petition,  Citation,  etc. ) 1277 

HOMESTEAD  EXEMPTION  : 

notice  of 447 

complaint  in  action  by  judgment  creditor  to  procure  judgment  direct- 
ing sale  of  property  exempted  as  a  homestead 447 

notice  cancelling 448 

IDIOTS,  LUNATICS,  HABITUAL  DRUNKARDS,  Etc.  : 

jiroceedings  for  ajipointment  of  committee  of 1090 

complaint  in  action  by  committee  of 11 06 

in  action  against  committee  of 1107 

proceedings  for  sale  of  real  estate  of,  list  of  forms  in 1115 

(See,  also,  the  titles  of  the  proceedings  relating  to,  e.  g..  Orders,  Peti- 
tions, etc.) 
INDEMNITORS  : 

substitution   of,  for   sheriff,    in   action.     (See  Affidavits,  Notices, 

Ordei-s) - 4r)5-459 

INDIVIDUAL : 

change  of  name  of,  proceedings  for 11G7 

INDORSEMENT  : 

by  plaintiff's  attorney  upon  order  of  arrest,  limiting  time  for 127 

on  execution  against  executor  or  administrator 432 

against  survivors  of  several  judgment  debtors 445 

issued  to  county  where  mortgaged  premises  are  situated,  when 
judgment  is  for  debt  secured  by  the  mortgage 460 


Index.  1481 

INDORSEMENT— (Continued). 

on  execution  issued  upon  judgment  recovered  upon  sheriflTs  bond. . .     771 
on  execution   issued   on  judgment  for  money  against  joint  debtors 

when  all  have  not  been  served 915 

in  justices'  courts  of  levy  upon  execution 1415 

on  summons  in  matrimonial  actions,  when  complaint  is  not  served..     706 
on  summons  in  action  to  recover   penalty  or  forfeiture  when   com- 
plaint is  not  served , 777,     936 

INFANTS : 

geneial  form  of  answer  of,  by  guardian  ad  litem 574 

appointment  of  guardian  ad  litem  for  infant  plaintiff 77 

for  infant  defendant 79 

in  justice's  court 1379,  1380 

sale,  etc.,  of  real  estate  of.     (See  Disposition  of  Meal  Property  of  In- 
fant, etc.) 1115 

complaint  by  infant  plaintiff , 666 

in  action  to  compel  infant  heir  to  convey 1116 

in  action  to  compel   specific  performance  of  contract  by  infant. .    1117 
INJUNCTION  ORDER  : 

proceedings,  relating   to 143 

resti-aining  creditors  of  corporation  from  bringing  action 717 

(See  proceedings  under  the  various  titles:  Affidavits,  Notices,  Orders,  etc.) 
INJUNCTION  UNDERTAKING: 

complaint  in  suit  on 157 

(See   Undertaking. ) 
INQUEST : 

afiidavit  of  merits  to  prevent 1446 

INQUIRY : 

writ  of.     (See  Writ  of  Inquiry.) 
INQUISITION  : 

of  idiocy,  lunacy,  etc 1101 

on  writ  of  inquiry 355 

of  jury  on  claim  to  projierty  levied  on 453 

upon  writ  of  assessment  of  damages 984 

INSOLVENT  DEBTOR  AND  PRISONER,  DISCHARGE  OF. 

(See  Affidavit,  Assigjiment,  Certificate,  Notice,  Order,  Petition.) 

consent  of  creditors  to  discharge 995 

schetlulft  annexed 997 

specification  by  creditor  of  objections  and  demaud  of  jury 1001 

discharge  of 1008 

exemption  and  discharge  of  imprisoned  debtor 1018 

INSPECTION,  Etc.,  OF  BOOKS  AND  PAPERS  : 

petition  for  discovery  of. 242 

order  to  show  cause  why  discovery  or  inspection  should  not  be  made,     244 
affidavit  to  procure  order  vacating  order  to  show  cause  why  discov- 
ery should  not  be  allowed 245 

order   vacating   order   to   show  cause  why  discovery  should  not  be 

allowed .' 246 

order  on  return  of  order  to  show  cause  why  discovery  should  not  be 

allowed 246 

certificate  of  inspection  by  referee 247 

see,  alwo,  correction  in  addenda  to  form  No.  334 244 


1482  Index. 

INSOLVENT  DEBTOR.  Etc.— (Continved). 

schedule  annexed  to  petition 997 

specification  by  creditor  of  objections  and  demand  of  jury ICOl 

discharge  of 1008 

txemptiou  and  discharge  of  imprisoned  debtor 1018 

list  of  forms  relating  to  discharge  of,  from  debts 993 

list  of  forms  relating  to  exemption  from  arrest  or  discharge  from  im- 
prisonment of 1014,  1020 

INSTRUMENT  FOR  PAYMENT  OF  MONEY  ONLY: 

complaint  on,  by  setting  forth  copy  113 

INTERPLEADER. 

(See  Siibstitution  of  Parties) 2.54 

INTERROGATORIES : 

to  be  annexed  to  a  commission 293 

cross  interrogatories  to  be  annexed  to  commission 293 

to  accused,  in  proceeding  for  contempt 1072 

order  directing  tiling  of,  in  contempt  proceedings 1071 

to  be  annexed  to  commission  for  examination  of  subscribing  witnesses 
to  will 1252 

INVENTORY: 

of  general  guardian  of  infant 

of  committee  of  lunatic,  etc 1111 

of  sherifif,  in  attachment  proceeding  in  court  of  record 177 

of  constable  in  justice's  court . 

annual,  of  guardian  with  account 1371 

of  attached  property  in  justice's  court 1388 

IRREGULARITY  : 

notice  of  motion  to  set  aside  final  judgment  for 384 

IRRELEVANT,  REDUNDANT  OR  SCANDALOUS  MATTER: 

notice  of  motion  to  strike  out  of  pleading 116 

order  striking  out  allegations  of  pleading  as  irrelevant 117 

ISSUES: 

notice  of  motion  for  trial  of,  by  jury 259 

order  for  trial  of  issues  bj'  jury  260 

order  referring  to  referee  the  settlement  of  issues  to  be  tried 261 

report  of  referee  settling  issues  to  be  tried 262 

JAIL  LIBERTIES. 

(See  Acknowledgment,  Bond,  Certificate.) 
JOINT  DEBTORS: 

forms  in  actions  and  relating  to  rights  of  action  against  and  between.  914 
JUDGMENT : 

m  action  for  absolute  divorce, 

final  on  referee's  report 868,  688 

final,  on  default,  of  where  answer  does  not  deny  adulterj' 688 

final,  dissolving  marriage  after  trial  of  feigned  issue 690 

on  acceptance  of  offer, 

for  plain tifif  on  filing  defendant's  offer,  and  his  acceptance 227 

on  acceptance,  by  defendant,  of  plaintiflF's  offer 228 

on  verdict 348 

final  for  plaintiff,  general  form  for  recovery  of  money 349 

affidavit  of  default  on  motion  lor 352 

notice  of  application  for  on  default 353 

notice  of  assessment  of  damages  by  clerk  on  default 353 

final  on  default  of  defendant  m  actions  specified  in  section  420 

Code  Civ.  Pro 37)3 

order  for  an  application  to  court  on  default 354 


Index.  1483 

JUDG]\IENT— ( Continued). 

in  action  to  annul  marriage, 

final,  on  ground  of  non-age,  lunacy  or  idiocy 677 

on  appeal, 

of  affirmance 408 

of  reversal 409 

dismissing  appeal  .   , 410 

on  remittitur  from  Court  of  Appeals 411 

order  for,  on  remittitur 410 

from  justice's  judgment 1432 

affidavit  on  motion  to  exempt  real'  property  from  lien  of,  pend- 
ing appeal 371 

notice  of  such  motion 373 

order  suspending  such  lien  on  appeal 373 

relating  to  arbitrations, 

upon  award , , 1151 

relating  to  cancellation  of  judgment, 

relating  to  cancellation  of, 

notice  of  motion  for  cancellation  of,  after  discharge  in  bankruptcy,  375 

affidavit  on  such  motion 375 

order  cancelling  judgment  upon  such  motion 376 

in  action  to  compel  conveyance,  etc  ,  by  infant,  etc., 

order  for,  that  infant,  etc.,  trustee  convey 1119 

order  for  specific  performance  of  contract  by  infant,  etc 1119 

in  action  for  chattel, 

final 654 

by  confession, 

statement  on  confession  of 377 

judgment  \)j  confession 379 

bill  of  costs  on  judgment  by  confession 380 

confession  of,  in  justice's  court 1411 

judgment  upon,  in  justice's  court 1412 

in  action  to  foreclose  mortgage 

final 577 

for  deficiency ^^ 

for  strict  foreclosure 600 

for  redemption  of  mortgaged  premises 605 

in  action  by  creditor  against  debtor's  next  of  kin,  etc., 

final  for  recovery  from  heir  or  devisee  of  debt  of  decedent 732 

on  decision  of  demurrer, 

order  for  final,  on  demurrer.     (See  Order.) 

interlocutory  on  decision  of  demurrer 369 

final  on  demurrer ^"^ 

on  report  of  referee  or  decision  of  court,  on  trial  of  issues 365 

in  action  for  determination  of  claim  of  real  property, 

final,  awarding  defendant  possession.-. 611 

for  the  plaintiff 611 

in  action  for  dis.solution  of  corporation, 

final 713 

order  revoking 697 

in  action  for  dower, 

order  for  interlocutory,  of  admeasurement 5-19 

interlocutory  of  admeasurement Cr)0 


1484  Index. 

JUDG3IENT— ( Contin  tied). 

order  for  final,  of  admeasurement 652 

final,  for  admeasurement 553 

final,  for  amount  in  lieu  of  dower,  etc 555 

interlocutory  for  sale 561 

fiual,  upon  report  of  sale 5C3 

of  motion  on  entry  of, 

notice  of  motion  for,  in  action  fen-  divorce 366 

same  notice  wliere  husband  is  plaintiff 367 

in  action  to  establish  or  impeach  will, 

final,  that  will  be  established     736 

in  action  to  foreclose  lien  on  chattel, 

final  for  plaintiff  upon  default 660 

in  action  relating  to  joint-debtors, 

for  money  against  defendants  joint!}'  indebted,  where  all  are  not 

served 915 

in  action  to  charge  defendant  not  personallj'  summoned 919 

in  judgment  creditor's  action, 

final,  general  form 752 

setting  aside  and  declaring  void  a  fraudulent  incumbrance 754 

setting  aside  fraudulent  conveyance 755 

dismissing  complaint  with  costs  to  be  set  off 755 

in  justices'  courts, 

upon  confession 1412 

in  matrimonial  action  generally, 

order  modifying,  so  as  to  allow  marriage  of  defendant 703 

notice  of  motion  for,  in  action  for  divorce 366 

same,  where  husband  is  plaintiff 367 

in  action  for  limited  divorce 367 

in  action  for  partition, 

interlocutory 521 

where  partial  partition  is  adjudged 534 

final,  on  report  of  commissioners  making  actual  partition 528 

order  modifying  interlocutory,  on  report  of  commissioners  that 

sale  is  necessary 530 

final,  on  confirmation  of  referee's  report  of  sale 537 

upon  pleadings, 

for  excess  of  plaintiff's  claim  over  coimterclaim 101 

upon  pleading  as  frivolous 115 

satisfaction  of - 374 

in  action  for  separation, 

final 695 

order  revoking gg^ 

relating  to  setting  aside, 

notice  of  motion  to  set  aside  final  judgment  for  irregularity. ...  384 

for  error  in  fact gg5 

regularly  entered  by  default 385 

ord(;r  to  show  cause  why  judgment  should  not  be  set  aside,  etc. .  385 

order  setting  aside  and  directing  restitution 386 

Statement  on  subuiipsion  of  controversy,  without  action  381 
186 


IxDEX.  14S5 

JUDGMENT— ( Continued). 

order  for  judgmeot  on  such  submission 383^ 

judgment  on  such  submission 38SJ- 

where  summons  is  served  by  publication, 

order  of  reference,  on   application  for,  after  service  by  publica- 
tion, etc 360 

I                 affidavit  on  such  application 35!> 

referee's  report  on  such  application 3G0 

undertaking  on  such  application 361 

order  for  judgment  on  such  application 362 

where  summons  is  served  by  publication 363 

order  of  severance 363 

in  surrogates'  courts.     (See  Decree.) 

upon  appeal  from  surrogate's  decree 1233 

in  action  against  usurper  of  office  or  franchise, 

final,  in  action  against  persons  acting  as  a  corporation  without 

being  duly  incorporated 935 

final,  in  action  for  usurping  office,  etc 935 

in  action  for  waste, 

for  treble  damages 61^ 

entry  by  clerk  on  docket  to  preserve  lien  of 484 

JUDGMENT  CREDITOR'S  ACTION  : 

forms  relating  to '73(> 

JUDICIAL  SETTLEMENT  OF  ACCOUNT  OF  EXECUTOR,  Etc.  : 

proceeding8  for 1321 

(See  Account,  Affidavit,  Decree,  Order,  Petition. ) 

JURISDICTION,  Etc.  : 

of  principal  courts  of  record,  forma  relating  to 26,  28 

JURORS. 

(See  Fines,  Oaths) 1410 

JUSTICES'  COURTS  : 

action  in,  for  recovery  of  chattel,  forms  of. 1392 

record  of  conviction  in,  for  criminal  contempt 1375 

arrest  in,  forms  of  proceedings 1381 

attachment  in,  foi-ms  of  proceedings  upon 1385 

criminal  contempt  in 1374 

commencement  of  action  in 1377 

appearance  of  parties  in 1379 

replevin  in 1 302 

pleadings  in 1396 

adjournments  in 1378 

com))elling  attendance  of  witnesses  in 1400 

commission  to  take  testimony  in liOA 

trial  and  its  incidents  in • 1407 

judgment  and  docketing  same  in 1410 

executions  in 1413 

appeals  fi  om  judgment  in 1419,  1422,  1423 

action  or  proceeding  in  relation  to  animals  straying 1 4'J4 


1486  Index. 

JUSTICES'  COVRTS—{Contimied). 

miscellaneous  forms,  etc.,  in 1432 

^See  Acceptance,  Ajfulavit,  Answer,  Bond,  Consent,  Execution,  Indorse- 
ment, Inventory,  Notice,  Oath,  Offer,  Order,  Precept,  Requisition,  Re- 
turn, /Subpoena,  Transcript,  Undertaking,  Venire,  Warrant,  under  that 
subject.) 
LEASE  OF  REAL  PROPERTY  OF  INFANT,  Etc.  : 
(See  Disposition  of,  etc.) 
forms  of  proceedings  lor 1115 

LEGACY : 

proceeding  for  payment  of,  by  executor,  etc    1317 

LETTERS  ROGATORY : 

form  of 302 

LETTERS  OF  ADMINISTRATION  : 

with  will  annexed 1271 

on  estate  of  intestate 12S6 

temporary 1290 

revocation  of.     (See  Citation,  Decree,  Order,  Petition) ]  295 

iincillary.     (See  Petition,  Citation) 1299 

LETTERS  OF  GUARDIANSHIP: 

form  of 1362 

LETTERS   PATENT: 

complaint  in  action  to  vacate 936 

LETTERS  TESTAMENTARY  : 

form  of 1264 

revocation  of.     (See  Citation,  Decree,  Order,  Petition) 1295 

ancillary.     (^e&  Citation,  Petition) 1299 

LIFE  TENANT  OF  REAL  PROPERTY: 

discovery  of  death  of 1082 

LIMITATIONS  : 

statute  of.     (See  Statute  of  Limitations) 37 

LIS  PENDENS. 

(See  Notice  of  Pendency  of  Action) 626,     627 

LIST: 

of  commissioner  or  county  clerk  of  struck  jury 343 

LUNATICS : 

forms  in  proceedings  for  appointment  of  committee  of 1090 

for  sale  of  real  pjjpperty  of , 1115 

MANDAMUS,     {^e^  Writ  of  Mandamus) 969,     971 

MARRIAGE  AND  DIVORCE : 

forms  in 665-708 

(See  Divorce.) 
MANDATE : 

of  commitment  for  criminal  contempt 1 

sheriff's  minute  of  receipt  of 7 

forms  relating  to  execution  of,  list  of 6,  19,  20 

(See  the  Titles  of  the  Various  Mandates. ) 


Index.  148T 

MATRIMONIAL  ACTIONS  : 

(See  Divorce,  Separation,  Action  to  Annul  Marriage) 665-70& 

MERITS : 

general  affidavit  of,  by  defendant 1446 

by  counsel 1446 

MINUTE : 

of  conviction  of  witness,  in  justice's  court 1402 

of  receipt  of  mandate  by  sheriflF 7 

MINUTES  : 

clerk's,  of  trial 345 

on  verdict  subject  to  opinion  of  court 346 

on  special  verdict 347 

MISAPPROPRIATION,  Etc.,  OF  PUBLIC  FUNDS  OR  PROPERTY  : 

complaint  fi)r 941 

MISCELLANEOUS  ACTIONS  AND  RIGHTS  OF  ACTION  : 

forms  relating  to -  850 

MONEYS : 

claim  to  surplus,  proceedings  on 589-596 

MORTGAGE : 

action  to  foreclose 564 

action  to  redeem 601 

complaint  in.     (See  Complaint.) 

judgment  in.     (See  Judgvwnt.) 

orders  in.     (See  Order.) 

action  for  strict  foreclosure  of 719 

proceeding's  for  surplus  in  action  for  foreclosure  of 589-596 

(See  For  Proceedings  in.  Complaint,  Judgment,  Order.) 

MORTGAGE  FORECLOSURE  BY  ADVERTISEMENT: 

proceedings  for 1156 

note,  by  clerk,  upon  margin  of  record  of  mortgage 1162 

bill  of  costs  upon 1162 

(See,  also.  Affidavit,  Notice,  Order,  Petition,  Referee's  Report.) 

MORTGAGE  OF  PROPERTY  OF  INFANT,  Etc.: 

forms  in  proceedings  for.     (See  Disposition) 1115 

MOTION  : 

(See  Notice,  Order.) 

to  dismiss  complaint,  for  failure  to  serve,  application  for 257,     258 

notice  of,  general  form 23o 

affidavit  of  service 238 

affidavits  upon.     (See  Affidavit.) 

to  vacate  or  modify  attachment  in  justice's  court 1391 

for  new  trial,  forms  relating  to 319 

MUNICIPAL  OFFICERS: 

forms  in  actions  by  and  against ^"8 

NAME  OF  INDIVIDUAL  OR  CORPORATION  : 

change  of,  proceedings  for.    1167 

NEW  TRIAL: 

notice  of  motion  for 3-8 

in  ejectment  suit "^^ 

affidavit  to  move  for, 

on  grout  (1  of  n^wly  diflcovered  evidence 330 

in  ejectment  Huit p04 

on  ground  of  surprise 329 

order  granting  motion  for 328 


1488  Index. 

NEW  TRIAL— (Coiidnved). 

in  ejectment 595 

order  denying  motion  for 333 

order  for  time  to  prepare  case  and  serve  notice  of  motion  for, 

with  stay  of  proceeding gjj 

NOTE  OF  ISSUE: 

form  of 31 1 

NOTE— PROMISSORY  : 

complaints  upon.     (See  Complaint.) 
answers  relating  to.     (See  Answer.) 
NOTICE : 

relating  to  appeals, 

of  appeal  from  final  judgment  or  order 395 

from  judge's  order 396 

to  Court  of  Appeals,  general  form 396 

to  Court  of  Appeals  from  order  granting  new  trial 397 

of  deposit  in  lieu  of  undertaking 401 

that  appellant  tile  new  undertaking 402 

to  appellant's  attorney  of  eiitrj-  of  judgment  or  order  of  aiflrm- 

ance  before  suit  on  undertaking 403 

to  discharge  levj-  under  execution  where  appeal  has  been  taken 

and  security  given    404 

of  motion  to  dismiss  appeal  406 

of  entry  of  order  to  limit  time  of  appeal  therefrom  to  Court  of 

Appeals 413 

of  exception  to  sureties  in  undertaking  on 41 9 

of  justification  of  sureties  in  undertaking  on 419 

of  allowance  of  such  sureties 420 

of  motion  for  stay  of  proceedings  on  appeal  from  order 422 

of  entry  of  judgment  or  oider  to  limit  time  for  appeal 423 

of  appeal  from  order  in  special  proceeding 424 

of  appeal  from  justice's  judgment .  1419 

in  proceedings  for  appointment  of  committee  of  lunatic,  etc., 

of  presentation  of  petition 1094 

to  lunatic,  etc.,  of  execution  of  commission 1100 

to  produce  lunatic W^^ 

of  application  to  confirm  finding  of  jury 1103 

in  arbitration  ]iroceedings, 

of  motion  to  confirm  award 11^° 

to  vacate  or  modify  award ilA^ 

to  opposite  party  of  revocation W^io 

relating  to  arrest. 

of  motion  for  discharge  of  lunatic,  etc..  from  arrest 121 

by  plaintiff's  attorney  of  non-acceptance  of  bail 135 

of  justification  of  bail  in  undertaking  to  discharge  from  arrest . .  135 

of  motion  to  vacate  order  of  arrest ■ 1^^ 

for  exoneration  of  bail  after  surrender 139 

relating  to  writ  of  nssessment  of  damages, 

of  execution  of  writ '^°^ 

of  filing  inquisition 9°" 

relating  to  attachment, 

of  attachment  of  '•eal  estate l"*^" 

of  personal  property  not  capable  of  manual  delivery 171 


Index.  1489 

NOTICE—  ( Continued). 

of  motion  to  vacate  or  modify,  or  increase  security 198 

same  notice  in  justice's  court 1391 

n>  disciiarge  on  giving  security 195 

of  exception  to  sufficiency  of  sureties  in  undertaking  given  on 

discharge  of 196 

for  discharge  of,  from  firm  property  on  giving  security . .     198 

of  application  by  sheriff  for  sale  of  attached  debts  and  things  in 
action 203 

relating  to  attorneys,  etc., 

in  case  of  death  or  disability  of  attorney 5 

relating  to  cancellation  of  notice  of  pendency  of  action, 

of  motion  to  obtain  order  for 1440 

relating  to  writ  of  certiorari  to  review. 

of  application  for 990 

relating  to  commencement  of  action  and  parties  thereto, 

to  be  indorsed  upon  summons  when  complaint  is  not  served  ....       40 

of  retainer  and  appearance  and  demand  of  complaint 40 

of  object  of  action  and  of  no  personal  claim  in  mortgage  fore- 
closure              41 

in  other  than  foreclosure  cases 41 

to  defendant  to  accompany  summons  as  published 68 

to  be  served  with  summons  without  the  State 68 

to  defendant  of  entry  of  judgment,  on  service  by  publication  ...       70 

relating  to  commission, 

notice  of  motion  for 288 

of  settlement  of  interrogatories 29-1 

of  examination  upon  oral  questions,  and  of  taking  deposition. . .     297 
of  motion  for  suppression  of 300 

relating  to  consolidation  of  a-^+ions, 

by  plaintiff  of  consolidation  of  actions 235 

in  contempt  proceedings, 

to  sheriff  to  return  execution  or  show  cause,  etc 1064 

in  action  relating  to  corporation, 

by  referee  to  creditors  of  corporation  to  present  and  prove  their 

claims 718 

of  application  for  injunction  against  corporation  or  officer  thereof,     719 
of  motion  for  appointment  of  receiver  of  corporation 720 

relating  to  costs, 

of  motion  for  extra  allowance  of 1437 

of  taxation  and  relaxation  of 1440 

relating  to  death  or  disability  of  party, 

of  motion  for  leave  to  continue  action 231 

relating  to  deposit,  etc.,  of  property, 

of  motion  to  rompol  deposit  in  court  of  money  or  property 220 

relating  to  discharge  of  insolvent  debtor  from  imprisonment, 

to  creditors  of  prcsctitatioii  of  petition 1021 

by  creditors  to  debtor  to  apply  for  dischargo 1025 

of  application  for  discharge  of  judgment 1018 


1490  Index. 

JJiOTlCE— (Continued). 

in  proceedings  to  discover  death  of  life  tenant, 

of  prcst'utatiou  of  petition 1083 

in  action  for  dower, 

of  motion  for  leave  to  pay  gross  sum  in  satisfaction  of 560 

relating  to  exceptions,  case,  etc., 

to  be  indorsed  on  case 325 

of  settlement  of  case 327 

relating  to  executions, 

of  motion  for  leave  to  issue 43& 

execution  against  property  of  deceased  judgment  debtor 440 

to  exempt  burial  lot  from 446 

of  homestead  exemption 447 

of  cancelling  exemption 448 

of  nn  tion  for  release  from  levy  of  personal  property  of  partner- 
ship    450 

by  sheriff  to  indemnitors  of  commencement  of  action 458 

of  sale  of  personal  property  by  sheriff  or  constable  under 459 

of  sale  of  real  estate  under  . .    461 

to  county  clerk,  by  joint  judgment  debtor,  to  preserve  lien  of 

judgment 483 

in  action  by  or  against  executor  or  administrator, 

to  executor  or  administrator  of  application  fo'  leave  to  issue  exe- 
cution on  judgment  against  him 725 

in  action  to  foreclose  mortgage, 

of  pendency  of  action 582 

of  claim  to  surplus  moneys 589 

of  motion  for  reference  to  obtain  surplus  moneys 590 

in  proceedings  to  foreclose  mortgage  by  advertisement, 

of  sale 1156 

of  postponement  of  sale 115» 

of  application  for  surplus 1164 

relating  to  writ  of  habeas  corpus  or  certiorari  to  inquire,  etc. 

to  person  interested  in  detention,  etc 960 

of  appeal  from  order  refusing  to  grant  writ 966 

relating  to  injunction, 

of  motion  for  injunction  order,  generally 145 

for  injunction  order  to  restrain  State  officer  or  board 145 

of  motion  for  reference,  to  ascertain  damages  on 153 

to  sureties  of  hearing  before  referee 155 

relating  to  interpleader, 

of  motion  to"  substitute  claimant  for  defendant 255 

relating  to  judgment, 

of  application  for,  to  court,  on  default 353 

of  assessment  of  damages  by  clerk  on  default 353 

of  execution  of  writ  of  inquiry 357 

of  assessment,  computation,  etc. ,  by  referee 358 

of  motion  for,  in  divorce  suit 366 

of  levy  on  real  property,  etc. ,  after  ten  years  from  filing  judg- 
ment roU 871 


Index.  1491 

mOTICB— (Continued). 

of  motion  to  exempt  real  property,  etc.,  from  lien  of  pending 

appeal 372 

of  motion  for  cancellation  of,  after  discharge  in  bankruptcj' 875 

of  motion  to  set  aside  for  irregularity 384 

for  error  in  fact 385 

regular  judgment  entered  by  default 385 

in  judgment  creditor's  action, 

of  application  for  injunction  order,  etc 758 

of  application  for  leave  to  make  a  supplemental  complaint 764 

injustices'  courts, 

of  application  for  discharge  from  arrest 1384 

of  exception  to  sureties  in  replevin  bond 1394 

of  justification  of  sureties  in  replevin  bond 1394 

by  constable  to  plaintiff  requiring  indemnity  on  claim  by  third 

person  in  replevin 1395 

discharging  defendant  from  arrest 1385 

privileged  person  from  arrest 1385 

of  application  for  commission 1404 

of  sale  under  execution 1418 

of  entry  of  judgraeut  to  limit  time  to  appeal 1419 

of  appeal  from  judgment  of , 1419 

to  respondent  of  deli\  ei-y  of  undertaking 1421 

of  acceptance  of  offer 1424 

of  claim  to  surplus  of  the  *5roceeds  of  sale  of  animals  seized, 

when  running  at  large  on  highway,  etc 1429 

relating  to  writ  of  mandamus, 

of  motion  for  writ  of  peremptory  mandamus 973 

of  appeal  from  order  granting  peremptory,  or  from  final  order 

granting  alternative  writ 975 

in  matrimonial  actions, 

of  application  for  sequestration  of  property  and  appointment  of 

receiver 704 

of  motion  for  judgment  in 366 

of  motion,  general  form 235 

in  action  for  partition, 

to  be  annexed  to  summons  served  by  publication  upon  unknown 

owners , 516 

to  parties  who  have  appeared  of  motion  for  order  of  reference  . .  517 

by  referee  to  creditors  to  prove  liens 531 

of  api)lication  for  moneys  paid  into  court  by  referee 533 

of  motion  by  general  guardian  for  authority  to  agree  to  partition,  MS 
in  action  l)y  private  person  on  official  bond, 

of  motion  for  ratable  distril)utlon  of  moneys  collected  from  sure- 
ties in  slieriff's  bond .- 773 

relating  to  pleadings, 

of  application  for  judgment  or>  failure  to  reply 102 

of  election  to  treat  unvtM-itied  pleadinj^  as  h  nullity 108 

of  motion  for  bill  of  partirulnm Ill 

for  j>]dgment  upon  pleading  as  frivolous  . . .  . ; 1 1-'{ 

to  strike  out  irnlevnnt,  <'tc..  rnatler     117 

to  make  more  uetinue  and  certain 1  Ih 


1492  INDEX. 

NO  TICE— (Continued). 

relating  to  writ  of  prohibition, 

of  mot  ion  for 976 

of  appeal  from  final  order  in  proceedings  by 980 

in  real  actions  generally, 

of  pendency  of  action  by  plaintiff 626 

bydefendant 627 

of  sale  of  real  property  under  judgment 627 

of  motion  for  survey  of  real  property 631 

relating  to  receivers, 

of  application  for  appointment  of 209 

of  motion  for  reference  for  appointment  of 211 

of  motion  to  nominate 214 

in  action  to  recover  chattel, 

of  exception  to  sureties 639 

by  sheriff  requiring  indemnity  on  claim  of  third  person 643 

to  sheriff  to  file  return 648 

by  plaintiff  of  abandonment  of  claim  to  chattels 649 

that  defendant  demands  judgment  for  return  of  chattels 653 

in  action  for  recovery  of  real  property, 

of  intention  to  re-enter 494 

of  motion  for  restoration  of  possession 495 

of  motion  for  new  trial  in 504 

in  summary  proceedings, 

to  pay  rent  or  to  surrender  possession  of  premises 1035 

to  pay  taxes  or  assessment,  or  surrender  possession  of  premises. .  1035 

to  tenant  at  will  or  sufferance  to  remove 1041 

in  cases  specified  in  section  2232  of  Code  Civ.  Pro 1041 

to  landlord  or  owner  of  premises  occupied  as  a  bawdy  house,  etc.  1042 

by  creditor  of  lessee  of  his  intention  to  redeem 1051 

of  appeal  from  final  order  in , 1181 

in  proceedings  supplementary  to  execution, 

of  application  for  order  permitting  payment  to  sheriff  by  person 

indebted  to  judgment  debtor 1193 

for  order  that  debtor  pay  over  money,  etc 1193 

for  appointment  of  receiver 1200 

in  surrogates'  courts, 

of  appearance 1214 

of  application  for  appointment  of  special  guardian  of  infant,  etc,  1215 

of  exceptions  to  surrogate's  decision 1331 

of  entry  of  surrogate's,  etc.,  decree  or  order  to  limit  time  to 

appeal 1229 

of  appeal  from  decree  or  order  of  surrogate,  or  of  surrogate's 

court 1229 

requiring  examination  of  all  the  subscribing  witnesses  to  will. . .  1248 

of  revocation  of  probate 1277 

of  application  for  appointment  of  temporary  administrator 1288 

of  distribution  of  proceeds  of  real  property 1345 

to  widow  of  satisfaction  of  her  dower 1347 


Index  1493 

l^OTICE— (Continued). 

relating  to  tender  and  other  offers  and  requests, 

of  oaynient  into  court  of  amount  tendered  bj'  defendant 223 

of  offer  by  defendant  to  liquidate  damages  conditionally 224 

of  acceptance  by  plaintiff  of  same 22-t 

of  offer  by  defendant  to  allow  judgment  to  be  taken  against  him,  225 
of  acceptance  by  plaintiff  of  defendant's  offer  to  allow  him  to 

take  judgment 226 

of  offer  by  plaintiff  when  defendant  sets  up  counterclaim. 227 

of  acceptance  by  defendant  of  plaintiff's  offer 226 

relating  to  trial  jurors, 

of  motion  for  struck  jury 342 

of  striking  special  jury 343 

by  sheriff  to  clerk  or  commissioner  of  jurors,  on  summoning 

foreign  jiuy 344 

relating  to  trial  of  issues  by  jury, 

of  motion  for 259 

relating  to  trials, 

of  trial  at  circuit  or  Special  Term 310 

before  referee 311 

note  of  issue 311 

of  motion  to  change  place  of 316 

of  motion  for  new  trial 3.28 

for  reference 334 

in  action  by  or  against  unincorporated  association, 

of  motion  for  substitution  of  president,  etc.,  of  such  association,  905 
in  proceedings  for  voluntary  dissolution  of  corporation, 

of  appearance 1176 

of  motion  for  liual  order 1176 

NOTICE  OP  PENDENCY  OF  ACTION: 

in  foreclosure  suit 582 

certificate  of  filing 583 

general  form  of,  ])y  plaintiff 626 

by  defendant 627 

aflBdavit,  on  motion  for  cancellation  of 1447 

notice  of  motion  for  cancellation  of 1448 

order  directing  service  of  notice  of  motion  for  cancellation  of 144'j 

order  directing  cancellation  of 1449 

NUISANCE: 

action  for,  forms,  etc 620 

OATH: 

of  office  of  attorneys,  etc 

to  jurors  on  writ  of  inquiry 156 

to  witness  on  writ  of  inquiry 156 

of  referee 337 

of  commissioners  in  partition 525 

of  comniiasioners  or  referee  in  dower 550 

to  jurors  on  execution  of  writ  of  assessment  of  damages 9h;{ 

of  commissioners  in  proceeding  to  inquire  as  to  lunacy,-  etc 10'.»7 

of  jurors  in  same  jirocecditig 1'"''^ 

to  wilnesHcs  in  same  proceediuii 10!)1) 

187 


1494  Index 

OATR— {Continued). 

of  arbitrators 1145 

to  witness  before  arbitrators 1146 

of  referee  iu  supplementary  proceedings 1190 

official,  of  executor 1234 

of  administrator '>285 

of  temporary  administrator 1293 

of  executor,  etc. ,  to  account "328 

in  justice's  court, 

of  juror 1408 

of  witness ,  -408 

constable's  oath  to  keep  jury '410 

OBJECTIONS: 

to  issuing  letters  to  executor  named  in  will "\362 

OBJECT  OF  ACTION. 

notice  of,  and  of  no  personal  claim  in  mortgage  foreclosure  cases. ...      41 

in  other  cases 41 

OFFER: 

of  judgment  by  defendant  in  court  of  record 225 

in  justices'  court  ...    1380 

by  defendant  to  liquidate  damages  conditionally 224 

by  plaintiff  when  defendant  set3  up  a  counterclaim 227 

notice  of  acceptance  of  offer.    (See  Acceptance  of  Offer),  224,  226,  1381,  1424 

of  judgment  on  appeal  from  money  judgment  of  justice's  court 1423 

of  judgment  on  appeal  from  judgment  of  justice's  court  after  case  is 

deemed  at  issue  in  appellate  court 1244 

OFFICIAL  BOND: 

action  on,  forms  relating  to 767 

OFFICE  OR  FRANCHISE : 

action  ajrainst  usurper,  forms  relating  to 924 

OFFICER,  PUBLIC: 

proceeding  by  to  compel  delivery  of  books  and  papera 1203 

ORDER: 

relating  to  appeals, 

substituiing  executor,   etc.,  of  deceased  party  as  respondent, 

where  adverse  party  has  died  before  appeal  was  taken 880 

to  show  cause  why  judgment,  etc.,  should  not  be  reversed,  etc., 
where  party  to  appeal  dies  and  order  of  substitution  is  not 

made  within  three  months  after  such  death 392 

on  return  of  above  order  to  show  cause 39S 

substituting  representative  of  deceased  party  to  appeal 394 

directing  as  to  manner  of  service  of  notice  of,  on  respondent 

when  he  cannot  be  found  within  the  State 398 

that  judge's  order  made  out  of  court  be  entered 399 

vacating  judge's  order  on  proof  of  non-compliance,  with  order 

directing  its  entrv 40# 

for  new  undertaking  w  here  sureties  are  insolvent 401 

discharging  levy  under  execution,  where  appeal  has  been  taken 

and  security  given 405 

dismissing  appeal  on  motion 406 

on  decision  of  appeal  from  order 407 

affirming,  reversing  or  modifying  judgment  on  appeal 407 

on  remittitur  from  Court  of  Appeals,  affirming  judgment 410 

staying  proceedings  on  appeal  from  order,  etc 423 


toDEX.  1495 

ORDER— ( Contimied) 

in  arbitralioa  proceedings, 

contirmmg  uwuid 1143 

vacating,  etc. ,  award 1160 

extending  time  w  itliin  whicli  motion  to  vacate,  etc.,  award  must 

be  made 1153 

relating  to  arrest, 

discharging  lunatic  from 121 

of  judge  for  airest  of  defendant  in  civil  action 125 

of  court  for  arrest  of  defendant  in  civil  action 126 

discharging  privileged  person  from 128 

vacating  order  of ,  etc 130 

discharging  defendants  from,  when  judgment  not  duly  entered, 

or  execution  duly  issued 133 

on  substitution  of  bail  for  deposit 137 

exonerating  bail  after  surrender  of  defendant 139 

in  case  of  death  of  defendant,  etc 141 

relating  to  writ  of  assessment  of  damages, 

order  confirming  inquisition 986 

relating  to  attachment, 

for  examination  of  person  refusing  to  give  certificate,  or  making 

false  or  insutlicient  certificate 174 

for  sale  of  perishable  property  and  live  animals  attached 177 

appointing  appraisers  to  value  vessel 180 

discharging  vessel  from 183 

discharging  foreign  vessel  from,  on  failure  of  plaintiff  to  give 

undertaking 184 

for  sale   of   vessel,   where  undertaking  of  plaintifl'  is  not  dis- 
charged, or  where  lie  is  not  indemnified 187 

where  proper  undertaking  is  not  executed  by  claimant 188 

on  application  of  joint  owner 188 

directing  sheriff  to  pay  into  court  proceeds  of  property  sold,  or 

demands  collected  under 189 

to  pay  over  surplus,  on  application  of  defendant  or  his  assignee,  189 
granting  leave  to  plaintiff  to  Kring  action,  in  name  of  himself 

and  sheriff,  to  recover  property  attached  or  value 190 

to  plaintiff',  to  join  in  action  brought  bj'  sheriff 191 

requiring  sheriff  to  return  inventory  of  attached  property 193 

of  reference  to  take  proof  of  value  of  attached  property 198 

permitting  junior  attachment  creditor  to  give  undertaking  to 

prevent  release  of  foreign  vessel 199 

to  commence  action  jointly  witii  slieriff 200 

directing  sheriff  to  sell  debts  and  things  in  action 204 

Bubstituting  defendant  in  suit  brought  by  sheriff,  or  by  sheriff 

jointly  with  plaintiff,  for  property  attached 206 

cancelling  notice  attaching  real  property 207 

relating  to  attorneys,  etc., 

admitting  attorneys,  et« 8 

relating  to  bonds  and  undertakings, 

granting  leave  to  prosecute  bond 250 


1496  Index. 

ORDER— ( Continued). 

relating  to  cancellation  of  notice  of  pendency  of  action, 

directing  service  of  notice  of  motion  for 1446 

directing  cancellation 1449 

relating  to  compelling  attendance  and  testimony  of  wituess, 

discharging  wituess,  or  other  person,  from  improper  arrest 270 

relating  to  consolidation  of  actions. 

consolidating^  action 252 

in  proceeding-  for  change  of  name  of  individual,  or  corporation, 

granting  leave .' 1168 

in  action  relating  to  corporation, 

to  be  served  with  answer  or  demurrer  in  action  against  corpora- 
tion upon  promissory  note  or  other  evidence  of  debt 709 

injunction  order,  restraining  corporation  and  the  officers,  etc., 

from  exercising  corporate  rights,  etc 716 

requiring  ci  editors  of,  to  exhibit  and  prove  their  claims 718 

in  jiroceeding  for  voluntary  dissolution  of  corporation 1173,  1177 

in  proceedings  for  contempt, 

for  warrant  of  contempt  of  court  issued  without  notice 1059 

to  show  cause  why  the  accused  should  not  be  punished  for  the 

alleged  offense 1062 

directing  that  warrant  of  attachment  issue 10(i3 

on  decision  of  motion  to  compel  return  of  mandate  by  sheriff. . .   1067 

directing  interrogatories  to  be  filed 1071 

convicting  offender  of  contempt  charged  and  directing  his  pun- 
ishment    1074 

discharging  offender  from  imprisonment 1078 

when  accused  does  not  appear 1079 

relating  to  costf*, 

for  extra  allowance 1438 

requiring  security  for,  to  be  given 1444 

relating  to  depositions, 

for  examination  of  party,  etc.,  before  trial 277 

of  person  who  expects  to  be  party  to  action,  etc 279 

appointing  referee  to  take  affidavit  to  be  used  on  motion 283 

for  a  commission 289 

for  commission  to  examine,  wholly  or  in  part,  on  oral  questions,     294 

for  open  commission,  or  taking  deposition 296 

for  suppression  of  commission 301 

for  commission,  where  witness  does  not  understand  the  English 

language 302 

in  justice's  court  (see  below), 
relating  to  deposit,  etc.,  of  property, 

for  payment  or  deposit  in  court  of  money  or  property 221 

requiring  sheriff  to  take  and  deposit  money  or  other  personal 

property  222 

relating  to  dismissal  of  complaint  for  neglect  to  serve  summons  or  to 
proceed, 
dismissing  complaint  for  neglect  to  serve  summons  on  some  of 

the  defendants 257 

for  failure  to  proceed  in  action 258 


Index.  1497 

ORD'ER— (Continued). 

relating  to  discovery  and  delivery  of  books  and  papers, 

to  show  cause  why  discovery  or  i»spection  should  not  be  allowed,  24'4 

vacating  order  to  show  cause 246 

on  return  of  order  to  show  cause 246 

to  show  cause  on  proceeding  to  obtain  delivery  of  books  and 

papers  by  public  officer 931,  1203 

relating  to  proceedings  upon  death  or  disability  of  party,  or  transfer 
of  his  interest, 
continuing  action  in  name  of  representative  or  successor  in  inter 

est  of  sole  plaintiff ; .  231 

in  name  of  representative  of  sole  defendant 232 

in  case  of  death  of  one  of  several  defendants,  jointly  liable 234 

directing  abatement  of  action  after  death  of  plaintiff  unless  con- 

tinued 238 

on  death  of  public  officer,  receiver,  trustee,  etc 233 

In  proceeding  to  discover  life-tenant, 

on  presentation  of  petition 1084 

dismissing  petition  when  original  order  has  been  complied  with,  1087 
in  proceeding  for  appointment  of  committee  of  lunatic,  etc., 

for  commission  or  for  jury  trial 1094 

final  on  return  of  commission 1103 

discharging  committee 1110 

for  inventory  or  account,  or  for  further  inventory,  etc.,  by  com- 
mittee    1114 

in  proceedings  for  disposition  of  real  property  of  infant,  etc, 

for  judgment  that  infant,  etc.,  trustee  convey 111& 

for  specific  performance  of  contract  by  infant,  etc. 1119 

appointing  special  guardian  of  infant 1124 

to  show  cause  why  committee  should  not  file  bond 1126 

on  return  of  last  above  order 1 127 

appointing  referee  in 1 128 

final,  on  report  of  referee 1 1 30 

confirming  guardian's  report  and  directing  conveyance 1138 

confirming  final  report  of  special  guardian 1140 

in  action  for  dower, 

for  interlocutory  juc/gment  for  admeasurement 549 

for  final  judgment  of  admeasurement 552 

of  reference  on  report  that  admeasurement  is  uot  practicable 554 

on  report  of  leferce,  as  to  sum  to  be  paid  in  lieu  of  dower 555 

granting  leave  to  pay  a  gross  sum  in  satisfaction  of  dower  right.  560 

In  action  relating  to  estate  of  decedent, 

permitting  execution  to  issue  -against  executor  or  administrator 

on  judgment  against  him 726 

relating  to  executions, 

directing  issuing  of,  against  sheriff,  to  person-other  than  coroner,  426 

to  show  cause  why  execution  should  not  issue 43H 

granting  leave  to  issue 439 

agjiinst  property  of  deceased  judgment  debtor 442 

appointiiiL'  person  to  proceed  upon  when  slieriff  is  dead  and  there 

is  no  under-sheriff 44ft 


1498  Index. 

ORDER—  ( Continued). 

releasing  personal  property  of  partnership 461 

to  sbow  cause  wLy  personal  pr()i)erty  of  partnership  should  not 

be  released  from  levy 451 

on  return  of  above  order  to  show  cause 452 

substituting  indemnitors  in  place  of  sheriff 456 

same  order  whre  indeiir  ity  rel.ted  only  to  part  of  property 

levied  on 457 

where  action  is  brought  against  sheriff  or  r.demnitors 458 

to  pn  vent  waste  upon  property  sold  under 464 

to  show  cause  why  party  violatmg  above  order  should  not  be 

punished  for  contempt 465 

superseding  warrant  and  discharging  wrong  doer 467 

in  action  to  foreclose  mortgage, 

of  reference  to  compute,  etc 575 

conlirniing  report  of  sale 589 

of  reference  as  ,o  claims  on  surplus  moneys 592 

for  payment  ol  surplus  moneys 597 

in  proceeding  for  foreclosure  of  mortgage  by  advertisement, 

of  reference  on  application  for  surplus 1165 

on  report  of  referee 1166 

in  proceeding  for  habeas  corpus  or  certiorari  to  inquire,  etc., 

committing  prisoner  for  refusing  to  obey  writ 956 

for  discharge  of  prisoner 958 

remanding  prisoner  under  section  2032,  Code  Civ.  Pro 958 

discharging  or  bailing  prisoner 959 

for  discharge  of  prisoner,  or  dismissing  proceedings  where  cer- 
tiorari has  been  issued  on  application  for  habeas  corpus 961 

for  bail  on  return  to  writ  of  certiorari 963 

admitting  prisoner  to  bail  pending  appeal 987 

relating  to  injunction, 

to  restrain  State  officer  or  board  from  performance  of  duty 144 

injunction  order,  where  right  to  depends  on  nature  of  action. . . .  147 

where  right  to  depends  upon  extrinsic  facts 148 

directing  payment   of  money,   on   procuring  injunction  order 

staying  proceedings  in  action  after  verdict,  etc 150 

of  reference  to  ascertain  damages  on 154 

vacating  or  modifying,  by  judge,  granting 159 

by  other  judge 159 

relating  to  insolvent  debtors  and  prisoners, 

to  show  cause  why  petitioner  should  not  o.  discharged  from  his 

dobts , ....... . .,. 998 

directing  trial  by  jury  of  questions  of  fact. . .    1(103 

requiring  petitioner  to  produce  his  wife  as  a  witness. 1003 

directing  execution  of  assignment    j  insolvent  debtor 1003 

granting  discharge  of  insolvent  debtor 1007 

that  trustee  show  cause  why  petitioner  should  not  be  discharged, 

etc 1010 


Index.  1499 

ORDER— ( Continued). 

on  return  of  last  above  order 1011 

for  cancellatioa  and  discharge  of  judgment 1013 

to  show  cause  why  petitioner  should  not  be  discharged  and 

exempted  from  arrest,  etc 1016 

directing  assignment  by  imprisoned  debtor 1016 

for  discharge  of  debtor  from  arrest,  etc 1017 

upon  presentation  of  petition  for  discharge  of  debtor  imprisoned 

by  virtue  of  execution 1023 

discharging  debtor  imprisoned  under  execution 1024 

to  show  cause  upon  presentation  of  petition  for  trustee  of  person 

imprisoned  for  crime 1028 

on  return  of  last  above  order 1028 

relating  to  interpleader, 

substituting  claimant  and  discharging  defendant 256 

in  action  on  judgment, 

granting  leave  to  sue  on 855 

relating  to  judgments, 

of  severance  of  action  against  several  defendants 351 

for  judgment  on  application  to  court  on  default 354 

of  reference,  on  application  for  judgment,  after  service  by  pub- 
lication    360 

for  judgment,  in  case  of  service  by  publication 302 

of  severance  of  action  into  two  or  more  actions 863 

for  final  upon  demurrer,  where  judgment  does  not  direct  final 

judgment 364 

suspending  lien  of  on  appeal 373 

cancelling  and   dischargiig  after  debtor's  discharge  in  bank- 
ruptcy.   376 

JO  show  '^•ause  why  judgment  should  not  be  set  aside 385 

setting  aside  and  directing  restitution > . . .  386 

in  judgment  creditor's  action, 

granting  petition  for  leave  to  come  in  as  a  party  to 758 

of  reference  to  appoint  receiver  in 760 

appointing  referee  to  take  examination  of  judgment  creditor,  etc  ,  760 

granting  leave  to  make  supplemental  complaint  in 765 

relating  to  jurisdiction  of  county  courts, 

of  Supreme  Court  on  proof  that  county  judge  is  incapable  of 

acting 80 

removing  action  and  changing  place  of  trial 32 

staying  proceedings  for  purpose  of  removal  of  action 1^2 

remitting  fine  or  penalty  or  forfeiture  of  recognizance 84 

remitting  fine  imposed  by  court  of  special  sessions  or  justice  of 

the  peace  and  discharging  prisoner 85 

In  justices'  courts, 

final  directing  sale  of  anlmaN,  stray inc,  etc.,  in  procecdintf*  for,  1127 

upon  verdict,  in  favor  of  party  answering  the  same  proceeding.  14;J0 

transferring  action ^^'^-^ 

relating  to  writ  of  mandamus, 

for  issue  of 970 


1500  Index. 

ORDER— ( Con  tinned). 

iu  matrimonial  actions, 

of  reference  in  action  to  annul  marriage 675 

in  action  to  dissolve  marriage  on  ground  of  physical  in- 
capacity    675 

in  action  to  dissolve  raan-iage  contract 685 

in  action  for  separation 694 

revoking  judgment  of  separation,  pursuant  to  joint  applica- 
tion of  parties 697 

as  to  alimony  and  expenses 700 

aTrarding  alimony,  etc. ,  on  report  of  referee 70<i 

modifying  judgment  so  as  to  allow  marriage  of  defendant 703 

sequestrating  property  of  defendant  and  appointing  receiver 705 

to  show  cause  why  the  defendant  should  not  be  punished  for  his 

failure  to  make  payment  of  alimony,  etc 708 

relating  generally  to  motions  and  orders, 

to  show  cause,  general  form 235 

relating  to  motion  for  new  trial, 

granting  or  denying  motion  for  new  trial 338 

for  time  to  prepare  case,  with  stay  of  proceedings 331 

relating  to  i)artics, 

that  defendant  be  designated  by  real  name  when  sued  by  ficti- 
tious name 71 

bringing  in  party  interested  in  his  application 71 

granting  leave  to  prosecute  action  as  poor  person 74 

granting  leave  to  defend  as  poor  person 76 

annulling  leave  to  prosecute  or  defend  as  poor  person 75 

appointing  guardian  for  infant  defendant 114 

same,  in  justice's  court 1379 

designating  guardian  for  resident  infant  defendant,  temporarily 

absent  from  State 81 

in  action  for  partition  of  real  property, 

directing  suit  t  >  be  brought  by  infant 508 

of  reference  where  defendant  has  made  default,  or  is  infant,  etc.  517 
modifying  interlocutory  judgment  on  report  of  commissioners 

that  sale  is  necessary 530 

substituting  successor  in  interest  as  party  defendant  in  case  of 

death  of  one  of  two  or  more  plaintiffs  or  defendants 54 1 

granting  leave  to  guardian,  etc.,  to  agree  to 543 

to  show  cause  why  such  leave  should  not  be  granted 544 

on  return  of  order  to  show  cause 545 

upon  referee's  report  as  to  merits  of  application  for  such  leave. . .  546 
relating  to  place  of  trial, 

to  show  cause  whj'  place  of  trial  .should  not  be  changed,  with 

stay  of  proceedings 315 

changing  place  of  trial 318 

relating  to  pleadings, 

allowing  amendment,  after  decision  of  demurrer 93 

of  severance  where  part  of  plaintiff's  claim  is  admitted 100 


Index.  1501 

OTUyER—iOontinuec^. 

of  reference  or  for  writ  of  inquiry  where  no  reply  is  made  to 

counterclaim 103 

for  bill  of  particulars 112 

for  judgment  upon  pleading  as  frivolous 114 

striking  out  answer  or  defense  as  sham lld^ 

striking  out  amended  pleading  when  put  in  for  delay 117 

striking  out  allegations  of  pleading  as  irrelevant,  etc 117 

requiring  pleading  to  be  made  definite  and  certain  by  amend- 
ment    118 

relating  to  writ  of  prohibition, 

that  alternative  writ  issue 976 

final  order  in 979 

in  action,  by  private  person,  upon  official  bond, 

granting  leave  to  prosecute  sheriff's  bond 768 

directing  ratable  distribution  of  moneys  collected  from  sureties 

in  sheriff's  bond 774 

in  real  actions,  generally 

restraining  defendant  from  commission  of  waste 630 

for  survey 633 

relating  to  receivers, 

to  show  cause  why  receiver  should  not  be  appointed 209 

appointing  receiver 310 

of  reference  to  appoint  receiver 211 

that  receiver  be  appointed,  and  of  reference  to  nominate  suitable 

one 214 

confirming  referee's  report  and  appointing  receiver 216 

of  reference  to  appoint  receiver  in  creditor's  suit 218 

in  supplementary  proceedings 1201 

in  action  to  recover  real  property, 

directing  delivery  of 497 

requiring  plaintiff's  attorney  to  produce  authority 498 

dividing  where  there  are  distinct  occupants 499 

dividmg  on  death  of  party 501 

dividing  where  party  dies  and  different  parties  succeed  to  inter- 
est    502 

granting  new  trial  in 505 

relating  to  prisoners, 

for  removal  of  sick  prisoner  to  hospital 19 

relating  to  personal  service  of  summons, 

for  service  on  person  other  than  defendant 63 

where  it  appears  that  person  to  whom  summons  is  delivered 

has  adverse  interest,  etc 03 

dispensing  with  service  on  lunatic 54 

relating  to  substitutes  for  personal  service  of  summons, 

for  service  on  resident  who  cannot  bo-  found 03 

for  service  by  publication 66 

In  summary  proceedings, 

final  order  in,  upon  return  of  precept  or  upon  trial 1040 

to  show  cause  on  petition  of  person  for  redemption  of  i)remiflcH,  1053 

order  on  return  of  last  above  order  to  show  cause 1054 

188 


1502  Index. 

OUDEll—iCoritinved). 

order  of  il- versal  of  final  order  in 1058 

in  proceedings  supplementary  to  execution, 

for  examination  of  judgment  debtor,  after  return  of  execution. .  1183 
to  examine  I'crsou  having  property,  etc.,  of  judgment  debtor  ...  118S 

permitt  ing  person  to  pay  debt  ti  sheriff 1193 

requiring  delivery  of  money  or  property  to  sheriff  or  receiver  by 

judgment  debtor 1 1 94 

directing  payment  or  application  of  money  or  property  by  sheriff,  11 1)4 

directing  balance,  etc  .  to  be  paid  to  judgment  debtor 1195 

dismissing  or  discontinuing  proceeding  directing  payment  of 

costs  to  judgment  creditor 1198 

to  judgiueiit  debtor 1199 

appointing  receiver 1201 

in  surrogates'  courts, 

of  General  Term,  designating  officer  or  court  to  discharge  duties 

of  surrogate  in  case  of  vacancy  in  office 1207 

directing  service  of  citation  on  re;<ideut  of  State  by  publication,  1211 
for  service  of  citation  by  publication  in  cases  provided  for  by 

sections  2502,  2523,  Code  Civ.  Pro 121 1 

for  additional  service  of  citation  in  case  of  infant,  etc 1213 

appointing  special  guardian  of  infant  or  lunatic,  etc 1214 

for  examination  of  witness  in  another  county. . .    1218 

appointing  referee  to  take  testimony  of  sick,  etc.,  witness 1219 

on  accounting 1221 

for  trial  by  jury 1224 

awarding  jury  trial  on  reversal  of  surrogate's  decree  in  probate 

cases 1233 

directing  deposit  of  security  with  surrogate  or  trust  company  by 

executor,  etc 1234 

authorizing  withdrawal,  etc.,  of  security  from  county  treasurer 

or  trust  company  by  executor,  etc 1234 

for  issue  of  citation  on  petition  for  new  bond  or  sureties  by 

executors,  etc 1236 

on  return  of  such  citation. .    1237 

for  issue  of  citation  on  petition  of  sureties  to  be  relieved  from 

responsibility 1240 

directing  as  to  custody  of  property,  when   co-executor,   etc., 

disagree 1243 

that  citation  issue  for  probate  of  will 1247 

that  citation  issue  to  executor  to  attend  inquiry  on  objection  to 

granting  letters 1261 

that  objector  proceed  with  inquiry 1261 

requiring  executor  to  qualify  or  renounce 1268 

in  case  of  failure  of  executor  to  qualify  pursuant  to  such  order,  1268 

appointing  temporary  administrator 1289 

that  temporary  administrator  made  deposit  or  show  cause,  etc.,  1293 
on  return  of  citation  issued*upon  petition  for  revocation  of  let- 
ters    1296 


Index.  1503 

OUDER— (Continued). 

accompanying  citation  in  proceeding  to  discover  property 

witblield,  etc 130& 

that  executor,  etc.,  return  inventory,  or  show  cause,  etc 1311 

for  citation  on  petition,  by  en ditor,  for  payment  of  claim 1313 

that  executor,  etc.,  account 1323 

that  citation  issue  to  creditors,  etc.,  on  petition  of  executor 

for  )  udicial  settlement  of  his  account 1325 

directing  execution  of  decree  for  sale  of  real  property,  on  filing 

bond  by  executor,  etc 1339 

confirming  sale  of  real  property,  by  executor,  etc 1342 

for  publication  of  notice  of  distribution  of  proceeds  of  real 

property 134.'> 

suspending  general  guardian  during  pendency  of  proceeding 

for  revocation  of  his  letters 1366 

allowing  generdl  guardian  to  account  on  his  petition  to  be  dis- 
charged  , 1367 

relating  to  general  regulations  respecting  time, 

enlarging  time  within  which  proceeding  in  action  must  be  taken,     236 
after  expiration  of  time  for  proceeding,  allowing  it  to  be  taken. .     237 

allowing  appeal  to  be  taken  by  heir,  etc.,  in  certain  cases 23? 

relating  to  trials, 

of  court  upon  trial  of  issue  of  law 332 

appointing  referee  pursuant  to  stipulation 334 

of  reference  where  examination  of  long  account  is  involved 336 

for  striking  special  jury 342 

for  foreign  jury 346 

order  of  postponement  of 143^ 

relating  to  trial  of  issues  by  jury, 

for  trial  of  issues  by  jury 260 

referring  to  referee  the  settlement  of  issues 261 

in  action  or  proceeding  against  usurper  of  franchise,  etc., 

to  show  cause  why  books  and  papers  relating  to  office  should 

not  be  delivered 9'^i»  1203 

discharging  defendant  on  return  of  such  order  to  show  cause,  932,  1203 
in  proceeding  for  voluntary  dissolution  of  corporation, 

to  show  cause,  on  presentation  of  petition 11 13 

final  dissolving  corporation ^1"' 

PAPERS,  BOOKS,  Etc.  : 

in8i)ection  of '-■*-' 

delivery  of  to  public  officer,  proceeding  to  compel ^♦24,  1203 

(See,  also,  Affidavit,  Complaint,  Order,  Warrant.) 
PARTICULARS: 

bill  of 11"-1J3 

PARTIES  TO  ACTION: 

forms  rtilating  to ''•  '•^'    '' 

PARTITION  : 

affidavits  in.     (See  Affidavits.) ^'"'^ 

bonds  in.     (fiee  Bond.) f'*"» 

coinjilaint  in.      (Seo.  Complairit.) ^'^^ 

judgment  in.     (See  Judgment. ) ^'"^ 

noticesin.     (See  iVo^irc  ) '^•'*' 

oaths  in.     (See  Oath.) '''^^ 


1504  Index. 

PARTITION— (Continued). 

orders  in.     (See  Order.) 506 

Iietitions  in,     (Hne  Petition.) 507 

reports  in.     (See  Referee's  Report,  Commissioner's  Report) 50(j,  507 

PARTNERSHIP: 

affidavit  on  motion  for  release  of  j)er8onal  i)roperty  of,  from  levy ....  4-19 

notice  of  motion  for  such  release 450 

order  releasing--  personal  jiroperty  of,  from  levy 451 

order  to  show  cause  why  property  of,   should  not  be  i-eleased  from 

levy 451 

oriler  for  return  of  order  to  show  cause,  etc 452 

undertaking  to  procure  such  release 453 

PARTY : 

examination  of,  as  a  witness,  etc.     (See  Examination) 272 

death,  disability  or  transfer  of  interest  of,  proceedings  upon 229 

PATENT : 

action  to  vacate,  complaint  in 936 

PAYMENT  OF  CLAIM  OR  LEGACY  BY  EXECUTOR,  Etc.  : 

application  for 1311 

PENALTY  : 

action  for,  by  private  person,  list  of  forms  relating  to 774 

same,  by  people 936 

PENDENCY  OF  ACTION: 

notice  of.     (See  Notice  of  Pendency  of  Action.) 
PEOPLE : 

actions  and  proceedings  in  behalf  of 924 

PERSON  CONFINED  FOR  CRIME  : 

care  of  property  of 1026 

PERSONAL  CLAIM : 

notice  of  none,  in  mortgage  foreclosure  suit 41 

in  other  actions 41 

PERSONAL  PROPERTY: 

actions  for  recovery  of,  forms  in 634 

PETITIONS : 

in  proceeding  for  appointment  of  committee  of  lunatic,  etc., 

for  appointment  of  committee 1091 

by  overseer  of  the  poor  for  afjpointment  of  committee 1093 

by  lunatic  for  discharge  of  committee  on  his  recovery 1108 

for  appointment  of  guardian  for  infant  plaintiff 77 

by  infant  defendant 79 

by  relative  or  friend  of  infant  defendant  or  party  to  action 80 

relating  to  writ  of  assessment  of  damages, 

on  application  for  writ  of  assessment  of  damages 981 

for  moneys  paid  into  court  under  writ  of  assessment  of  damages.     987 

relating  to  attachment, 

by  sheriff  for  sale  of  debts  and  things  in  action  under  attach- 
ment       S02 


Index.  1505 

VETJTIONS- (Continued). 

in  proceeding  to  change  name  of  individual, 

by  person  of  full  age 1167 

by  infant 1169 

in  proceeding  to  discover  death  of  life- tenant  of  real  property, 

for  production  of  tenant 1082 

of  person  evicted  for  i-estoration  to  possession 1088 

by  committee  of  lunatic,  etc.,  for  sale  of  his  real  property  to  pay 
debts,  etc 1123 

for  discovery  of  book,  document  or  other  paper 242 

relating  to  fines,  etc., 

for  order  i-emitting  fine  or  penalty  or  forfeiture  of  recognizance.       33 
for  remission   of  fine  imposed  by  court  of  special  sessions  or 
justice  of  the  peace 35 

in  proceeding  for  foreclosure  of  mortgage  by  advertisement, 

for  surplus  moneys 1163 

relating  to  writ  of  habeas  corpus,  etc., 

on  application  for  writ  of  habeas  corpus  or  certiorari  to  inquire, 
etc 951 

relating  to  insolvent  debtor  and  prisonei", 

for  discharge  of  insolvent  debtor 993 

for  exemption  from  anest  and  discharge  from  imprisonment  of 

insolvent  debtor 1014 

for  discharge  of  person  imprisoned  by  virtue  of  execution 1020 

for  appointment  of  trustees  to  take  charge  of  property  of  per- 
son imprisoned  for  crime 1026 

in  judgment  creditor's  action, 

by  judgment  creditor  for  leave  to  come  in  as  a  party  to  judg- 
ment creditor's  action 756 

in  justices'  courts, 

for  sale  of  animals  seized  when  running  at  large  on  highway.  ..   1425 

in  matrimonial  actions, 

for  appointment  of  next  friend  for  infant,  etc.,  in  action  to  annul 

marriage 679 

by  parties  to  action  for  separation  for  revocation  of  judgment..     696 
for  alimony  and  expenses  in  action  for  divorce  or  separation ....      698 

relative  to  action,  etc.,  by  poor  person, 

for  leave  to  prosecute  as  a  poor  person 7.{ 

to  defend  as  a  poor  person 75 

in  proceeding  for  sale  of  real  property  of  infant,  etc., 

for  sale  of  real  property  of  infant 1120 

in  summary  proceedings  for  i-eal  estate, 

by  landlord,  under  section  2231  of  Code  Civ.  Pro 1030-10:54 

by  person  entitled  to  possession  of  real  jwoperty  under  section 

2232,  Code  Civ.  Pro 1036-1039 

for  removal  of  pei-son  for  forcible  entry  or  dt^tainiM- 1040 

by  one  in  neighborhood  of  bawdy-house,  etc.,  for  retnoval  of 

occupant 1042 

of  person  redeeming  i)remiHeB 1052 


loOG  Index. 

FBTITIONS— {Continued) . 
in  surrogate's  court, 

for  order  of  general  terra  on  disqualification,  etc.,  of  surrogate..  1206 

to  surrogate  to  take  examination  of  aged,  sick  or  infirm  witness.  1217 

for  new  bond  or  sureties  to  be  given  by  executor,  etc 1235 

of  sureties   in   a  bond   of    executor,  etc.,  for  relief  from  their 

responsibility 1239 

for  probate  of  will 1245 

for  proof  of  lost  or  destroyed  will 1257 

for  order  requiring  executor  named  in  will  to  qualify  or  re- 
nounce    1267 

for  appointment  of  administrator,   with  the  will  annexed 1269 

for  revocation  of  probate  of  Avill 1272 

for  probate  of  heirship 1277 

to  vacate  or  modify  decree  establishing  the  right  of  inheritance.  1281 

for  letters  of  administration 1282 

for  temporary  administration 1287 

for  payment  of  debt  by  temporary  administrator Iii92 

that  temporary  administrator  deposit  money  or  show  cause,  etc..  1292 

by  person  interested  for  revocation  of  letters 1294 

by  executor  for  revocation  of  letters 1298 

for  ancillary  letters,  testamentary  or  with  will  annexed 1300 

of  administration 1302 

by  executor,  etc.,  to  discover  property  withheld,  etc 1304 

to  compel  return  of  inventory 1310 

by  creditor  for  payment  of  claim, 1311 

for  payment  of  legacy 1317 

on  failure  of  executor,  etc.,  to  set  aside  exempt  property 1321 

for  judicial  settlement  of  account  of  executor,  etc 1322 

by  executor  on  return  of  citation 1324 

by  executor,  after  expiration  of  a  year,  for  an  accounting,  he  not 

having  been  cited 1326 

for  disposition  of  decedent's  real  property  for  payment  of  debts, 

etc 1333 

by  testamentary  trustee  for  final  settlement  of  his  accounts 1350 

by  person  interested  in  estate  for  intermediate  .account  by  testa- 

mentai-y  trustee 1350 

to  compel  payment  of  money  or  delivery  of  personal  property 

by  testamentary  trustee 1351 

by  persons  interested  in  execution  of  trusts,  etc.,   for  judicial 

settlement  of  accounts  of  testamentary  trustee   1354 

of  testamentary  trustee  for  leave  to  resign  his  trust 1354 

for  security  fi-om  testamentary  trustee 1355 

for  removal  of  testamentary  trustee 1356 

by  infant  over  fourteen,  for  appointment  of  general  guardian...  1356 
by  mother  of  infant  under  fourteen,  for  appointment  of  tempo- 
rary guardian 1361 

for  revocation  of  letters  of  guardianship  by  ward,  etc 1363 

by  general  guardian  1366 

for  ancillary  letters  of  guardianship 1369 


Index.  1507 

PETITIONS— ( CoTiimiied) . 

for  judicial  settlement  of  guardian's  account 1372 

to  surrogate's  court  for  leave  to  issue  execution  against  property 

of  deceased  judgment  debtor 443 

of  general  guardian  of  infant  or  committee  of  lunatic,  etc.,  for 

authority  to  agree  to  partition 542 

in  proceeding  for  voluntary  dissolution  of  corporation, 

by  majority  of  trustees  for  dissolution 1170 

in  case  the  directors,  etc.,  are  equally  divided  respecting  its 

management 1172 

PLACE  OF  TRIAL: 

forms  relating  to 312 

change  of.     (See  Affidavits,  Notices,  Orders) 312 

PLEADINGS : 

forma  relating  to,  in  courts  of  record 85-119 

forms  relating  to,  in  justices'  courts,  list  of 1396 

verifications  of 105 

(See  Aiiswer,  Ccnnplaint,  Reply.) 
orders  relating  to.     (See  Orders.) 
complaints.     (See  Complabits  ) 
answers.     (See  Answers  ) 
reply.     (See  Reply.) 
affidavits  relating  to.     (See  Affidavits.) 
notices  relating  to.     (^ee  Notices. ) 

POOR  PERSON  : 

proceedings  by  parties  prosecuting  and  defending  as 73 

(See,  also.  Certificates,  Notices,  Orders.) 

POSSESSION : 

of  chattel,  recovery  of,  action  for.     (See  Recovery,  Replevin). . .   634,  1392 
of  real  property,  recovery  of,  action  for 485 

PRECEPT : 

by  judge  to  bring  before  him  the  prisoner  in  proceedings  by  habeaia 
cori^us,  etc ^57 

issued  upon  presentation  of  petition  in  summary  proceedings 1043 

by  sheriff  to  summon  jury  in  proceedings  for  appointment  of  com- 
mittee of  lunatic,  etc I'^SS 

upon  petition  in  proceedings  for  sale  of  animals  straying,  etc 1426 

PRISONER: 

order  for  removal  of  sick,  to  hospital 19 

certificate  upon  which  such  order  is  procured -0 

bond  of,  to  atlmit  to  jail  liberties 21 

acknowledgment  and  certificate  upon  surrender  of,  by  his  sureties 

in  bond  given  for  jail  liberties 22 

care  of  property  of,  confined  for  crime 1028 

(See,  also.  Order,  Petition,  etc.,  in  HaheM  ('i>r])us  Prormlings,  and 
far  Discharge  of  Innolvent  Debtor  a  and  Priatmern.) 


1508  Index, 

probate  of  "will: 

proceedings  for.     (See  Petition,  Citation,  etc.) 1245 

PROCEEDINGS,  SUPPLEMENTARY  TO  EXECUTION : 

forms  in 1178 

aflSdavita  in.     (See  ^^dav/Ys),  list  of  forms  of 1178,  1179 

orders  in.     (See  Orders),  list  of  forms  of 1178,  1200 

notices  in.     (See  i\r«iice6),  list  of  forms  of 1178,  1200 

PROCESS  OR  MANDATE: 

forms  relating  to  execution  of. 6,  19,  20 

PROHIBITION. 

(See  Writ  of  Prohibition. ) 

PROMISSORY  NOTES: 

complaints  upon.     (See  Complaints.) 
answer,  in  suits  upon.     (See  Answer.) 
reply  in  suits  iii)ou.     (See  Reply.) 

PROPOSAL  OF  NAMES  TO  REFEREE  FOR  RECEIVER : 

form  of 213 

PROPERTY  WITHHELD  FROM  EXECUTOR: 

discovery  of.     (See  Discovery.) 1303 

PROPERTY  OF  PERSONS  CONFINED  FOR  CRIME: 

care  of.     {See  Petitions,  Orders.) 1026 

PROPERTY  OF  LUNATIC,  IDIOT  OR  HABITUAL  DRUNKARD : 

appointment  of  committee  of  person  and 1090 

PROTEST  OF  BILL  FOR  NON-ACCEPTANCE : 

certificate  of 307 

PROVISIONAL  REMEDIES  IN  ACTION  : 

forms  relating  to , 120 

PUBLICATION  OF  SUMMONS  AND  OF  CITATION : 

(See  Affidavits,  Orders,  SummoJis.) 62,  1211 

PUBLIC  FUNDS  OR  PROPERTY: 

spoliation  or  misappropriation  of. 941 

PUBLIC  OFFICER: 

proceeding  by,  to  compel  delivery  of  books  and  papers 1203 

REAL  PROPERTY : 

action  for  recovery  of,  forms  in 485 

disposition  of,  for  payment  of  debts  etc.,   of  decedent.     (See  Dis- 

positum.) 1333 

disposition  of,  of  infant,  idiot,  etc 1115 

summary  i)roceeding3  for  recovery  of 1029 

real  actions  generally 621,     626 

RECEIPT: 

by  sheriff,  of  mandate 7 


Index.  150D 

RECEIVER. 

(St^e  Affidavit,  Bond,  Order,  Notice,  Petition,  Proposal  of  Names,  etc.. 

Referee's  Report,  Summons.) 208 

RECOGNIZANCE : 

complaint  on.     (See  Complaint  ) 936 

of  prisoner  for  his  appearance  in  habeas  corpus  proceedings 962 

on  appeal  from  final  order  dismissing  proceedings,  etc.,  in  habeas 

corpus  proceeding 9(58 

RECORD  OF  CONVICTION: 

for  criminal  contempt  in  justice's  court 1375 

RECOVERY : 

of  possession  of  chattel,  forms  in  action  for,  in  court  of  record 634 

in  justice's  court 1392 

of  real  property,  forms  in  action  for 485 

REDEMPTION  OF  MORTGAGED  PREMISES : 

complaint  in  action  for.     (See  Complaint) 601 

j  udgment  in  action  for.     (See  Judgment) 605 

from  sale  under  execution,  list  of  forms  in 460 

REDUNDANT,  Etc.,  MATTER, 

(See  Irrelevant,  etc..  Matter.) 

motion  to  strike  out  from  pleading 116 

RE-ENTRY  : 

notice  of  intention  to  re-enter  real  property. 494 

REFEREE : 

report  of.     (See  Referee's  Report.) 

oath  of. 337 

waiver  of  oath  of 338 

subpoena  before 338 

notice  of  trial  before 311 

REFEREE'S  REPORT: 

of  appointment  of  receiver 213 

nominating  receiver 215 

settling  issues  and  question  to  be  tried 202 

on  trial  of  issues  of  fact ^^9 

on  trial  of  demurrer '-^^^ 

on  applicJition  for  j  udgment,  after  service  by  publication 300 

judgment  upon,  on  triul  of  isBiies 305 

notice  of  motion  for  confirmation  of,  in  action  fur  divorce  or  Hepara- 

tion 806 

same  notice  where  husband  is  plaintiff 367 

judgment  upon,  for  limited  divorce 307 

for  absolute  divorce **68 


1510  Index. 

REFEREE'S  REPORT— (Continued). 

as  to  title,  etc.,  in  partition  suit 518 

of  sale  in  partition  suit 53l> 

as  to  merits  of  application  for  authority  to  make  partition 545 

of  admeasurement  of  dower,  etc 551 

of  sale  in  action  for  dower 562 

of  amount  due  in  foreclosure  suit 576 

of  sale  in  foreclosure  suit 585 

as  to  surplus  moneys  in  foreclosure  suit 595 

in  action  for  chattel 653 

in  action  to  annul  marriage  ....  , 676 

in  action  to  dissolve  marriage  ,   686 

in  action  for  a  separation 694 

as  to  alimomy,  etc 701 

in  proceedings  for  discovery  of  life-tenant 1086 

in  proceedings  for  disposition  of  real  property  of  infant,  etc 1129 

on   application  for  surplus  moneys  in  foreclosure  of  mortgage  by 

advertisement 1165 

in  proceeding  for  voluntary  dissolution  of  corporation 1175 

in  proceedings  supplementary  to  execution  against  property 1189 

on  accounting  in  surrogate's  court 1222 

REFERENCE : 

(See  Affidavits,  Notices,  Orders,  Referee,  Referee's  Report.) 

stipulation  for 333 

order  referring  upon  stipulation 334 

affidavit  to  move  for 335 

order  for,  where  long  account  is  involved  .    336 

affidavit  to  oppose  motion  for 336 

by  surrogate  on  accounting,  order  of 1221 

RELEASE: 

by  mari-ied  woman  of  inchoate  dower  right  to  her  husband  in  parti- 
tion suit 535 

of  widow's  right  of  dower  in  proceeding  for  sale,  etc.,  of  real  estate 

of  infant,  etc 1138 

to  joint  debtor  compounding  separately  with  creditor 919 

to  partner  compounding  separately  with  creditor 920 

of  widow's  light  of  dower  in  proceeding  for  sale,  etc.,  of  real  prop- 
erty of  decedent 1348 

of  real  property  of  infant,  etc 1115 

REMEDIES : 

for  failure  of  title  and  to  enforce  contribution  under  execution  sale..  477 

REMITTITUR  : 

from  Court  of  Appeals  on  judgment  of  affirmance - 26 

of  reversal 28 

REMOVAL  OF  CAUSE  : 

affidavit  to  apply  for  in  case  of  incapacity  of  county  judge 29 

order  of  Supreme  Court  for,  on  proof  of  incapacity  of  county  judge. .  29 

certificate  of  county  judge  that  he  is  incapable  of  acting 29 


Index.  1511 

REMOVAL  OF  CA.'US^— (Continued). 

affidavit  on  application  to  remove  cause  from  county  court  to  Supreme 

Court  for  purpose  of  changing  place  of  trial 31 

order   removing  action  from   county   court  to   Supreme  Court  and 

changing  place  of  trial 32 

order  staying  proceedings  for  pui'pose  of 32 

RENUNCIATION : 

by  executor 1265 

retraction  of , 1266 

by  person  having  prior  right  to  administer  on  application  for  admin- 
istration with  will  annexed 1270 

on  application  for  letters  of  administration 1284 

REPLEVIN  : 

forms  in  action  of 634,  1392 

<See,  also,  Affidavits,  Aiiswei-,   Complaints,  Judgment,  Justices',  Courts, 
Notices,  Return,  Undertakings,  Verdict.) 

REPLY : 

general  form  of 101 

demurrer  to 91 

notice  of  application  for  judgment  upon,  as  frivolous 113 

of  statute  of  limitations 37 

REPORT  OF  COMMISSIONERS  : 

in  iiartition  action 525 

REPORT  OF  REFEREE. 

(See  Referee's  Report.) 
REQUEST : 

to  court  or  referee  to  find  upon  facts  or  law 341 

REQUISITION  : 

upon  sheriff  by  bail  given  on  arrest  of  defendant,  on  defendant's  sur- 
render by  them 1 40 

same,  by  defendant  upon  his  voluntary  surrender 140 

to  constable  to  replevy  chattel  in  justice's  court 1392 

RESIDENT  : 

designation  by,  of  person  on  whom  summons  may  be  served  during 
his  absence 65-59 

RETURN : 

(See  Certificate.) 
relating  to  proceedings  for  appointment  of  committee  of  lunatic,  etc., 

to  precept  in 1098 

relating  to  attachment, 

to  warrant  of  attachment 18 

to  warrant  under  proceeding  for  collection  of  demand  against 

ship  or  vessel IS 

of  service  of  subpd-na • 'S 

relating  to  writ  of  certiorari, 

to  writ  of  certiorari '*"•' 

to  writ  of  certiorari  to  review ^••'-^ 

in  contempt  j)roceedingH, 

to  writ  of  habfjw  corpus  i.^ \010 


1512  INDEX. 

RES'VRl^i— (Continued). 

to  warrant  of  attachment  in , 1071 

relating  to  examination  of  party, 

by  judge  or  referee  of  examination  of  party  as  a  witness  before 

trial 281 

relating  to  execution,  etc., 

sheriff's,  to  execution,  etc., 

of  no  property 7 

when  collected  in  whole  or  in  part 7 

of  no  goods  of  testator  in  action  against  executor 8 

where  property  remains  unsold  for  want  of  buyers 8 

of  arrest  under  order  and  holding  to  bail 9 

to  process  of,  not  found 9 

to  execution  against  the  person  of,  paid  or  settled 9 

of  arrest  and  imprisonment  for  want  of  bail 10 

of  arrest  and  rescue 10 

of  arrest,  and  that  defendant  is  sick 11 

of  arrest,  and  death  of  defendant 11 

of  exemption  from  arrest 11 

of  privilege 12 

same  in  case  of  foreign  minister  or  officer  of  court 13 

whei-e  defendant  makes  deposit  instead  of  bail 14 

of  goods  taken  or  replevied 14 

•where  only  part  of  goods  can  be  found 15 

where  none  of  goods  can  be  found 15- 

where  defendant  gives  security  and  keeps  the  goods 15 

of  payment  of  sum  of  money  instead  of  delivery  of  goods,  16- 
that  chattel  cannot  be  found,  and  that  amount  to  be  paid  in 

that  event  has  been  satisfied 16 

to  writ  of  habeas  corpus 16,  95& 

injustices'  courts, 

constable's,  of  service  of  summons 1378 

of  failure  to  make  such  service 1379 

to  order  of  arrest 1384 

to  warrant  of  attachment 1390- 

to  requisition  for  replevin  of  chattel 1393 

of  service  of  subpoena 1401 

to  venire 140S 

of  justice  on  appeal  from  his  judgment 1421 

relating  to  writ  of  mandamus, 

to  alternative  writ  of 973 

relating  to  writ  of  prohibition, 

to  alternative  writ  of. 978 

to  writ  for  possession  of  real  property 17 

in  action  for  replevin, 

sheriff's,  to  requisition  for  replevy  of  chattel  on  delivery  thereof 

to  plaintiff 645 

sheriff's,  where  a  third  person  claims  the   chattel,  and  plaintiff 

indemnifies  or  refuses  to  indemnify 647 


Index.  1513 

RETURN—  ( Cmtinited) . 

sheriflTs,  of  redelivery  of  chattel  to  defendant 647 

where  none  of  chattels  is  found 16,     648 

notice  to  sheriff  to  file  return  in  replevin 773 

relating  to  summary  proceedings, 

to  warrant  in , 1048 

to  precept  in 1043 

in  supplementary  proceedings, 

sheriffs,  of  arrest  pursuant  to  warrant  in   supplementary  pro- 
ceedings   1197 

referee's  return  in  same  proceedings 1 189 

in  surrogates'  courts, 

of  surrogate  of  examination  of  witness  before  him 1362 

relative  to  writ  of  assessment  of  damages, 

of  execution  of  writ  of 985 

in  justices'  courts  (see  below). 

REVIVAL  : 

of  action , 229 

REVOCATION  : 

of  probate  of  will,  proceedings  for.    (See  Petition,  Citation,  etc.). . . .  1273 

of  letters  of  administration 1294 

of  letters  testamentary 1294 

ROGATORY : 

letters.     {See  Letters  Rogatory.) 302 

RULINGS  : 

of  court,  after  trial 331 

exceptions  to  same 319 

SALE: 

redemption  and  conveyance  of  real  estate  under  execution 460 

of  real  estate  under  judgment,  notice  of. 627 

notice  of,  by  sheriff  under  execution 461 

of  infant's,  lunatic's,  habitual  drunkard's,  etc.,  real  estate      (See 

Affidavits,  Orders,  etc.) 1116 

of  real  property  of  decedent  to  pay  debts,  etc.     (See   DL<fposition 
of,  etc) 1333 

SATISFACTION  OF  JUDGMENT: 

general  form  of 374 

certificate  of,  under  which  redemption  is  made 469 

SATISFACTION  OF  MORTGAGE  : 

certificate  of,  under  which  redemption  is  made 468 

SCANDALOUS,  Etc.,  MATTER  : 

motion  to  strike  out  from  pleading,     (Bee  Irrelevant,  etc.,  Matter.) . .     116 

SECURITY  FOR  COSTS : 

(See  Coats.) 


1514  Index. 

separation. 

forms  relating  to  action  for 691 

(See  Affidavit,  Complaint,  Order,  Notice,  Petition,  under  this  head.) 

SERVICE: 

of  citation 1208 

of  summons.    (See  Admission,  Affidavit,  Certificate,  Order,  Sum7noTis).      62 

of  paper.     (See  Affidavit) 238 

of  subpoena.     (See  Affidavit,  Certificate) 264,  1378 

SETTLEMENT  : 

of  account,  judicial,  by  executor,  etc.     (See  Petition,  etc.) 1821 

SEVERANCE : 

order  of,  when  part  of  plaintiflTs  claim  is  admitted 100 

in  action  against  several  defendants ^ . .  361 

of  action  into  two  or  more  actions 363 

SHERIFF  : 

(See  Affidavit,  Certificate,  Notice,  Deed,  Order,  Return,  Undertaking.) 

receipt  of,  for  mandate 7 

certificate  of  qualification  of 23 

assignment  by  old  sheriff  to  new ...    24 

acknowledgment  by  new,  of  receipt  of  property,  etc 24 

SHOW  CAUSE  : 

order  to.  general  form  of 236 

SPECIFIC  PERFORMANCE  : 

complaint  for,  by  infant,  etc 1116,  1117 

judgment  for,  by  infant,  etc 1119 

SPOLIATION,  Etc.  : 

of  public  property  or  funds,  complaint  for ....     941 

STATEMENT  : 

on  confession  of  judgment  without  action 377 

same,  in  justices'  courts 1411 

on  submission  of  controversy  without  action 381 

by  pei-sons  composing  joint-stock  association  of  membership  thereof,     920 

STATUTE  OF  LIMITATIONS  : 

answer  or  reply  of 37 

STAY  OF  PROCEEDINGS: 

on  appeal,  notice  of  motion  for.     (See  Notice) 422,     331 

on  motion.     (See  Notice.) 316 

STIPULATION : 

that  commission  issue 299 

referring  action 333 

order  appointing  referee,  pursuant  to •  •  •  •     833 

for  taking  of  deposition 280 

of  respondent  for  reversal  of  justice's  judgment 1422 


Index.  1515 

strict  foreclosure  : 

complaint  for.     (See  Complaint) 598 

judgment  for.     (See  Judgment) 600 

STRUCK  JURY  : 

notice  of  motion  for , 342 

order  for  striking 34'J 

notice  of  striking 343 

list  of  special  jurors,  upon 343 

SUBMISSION  OF  CONTROVERSY  WITHOUT  ACTION  : 

statement  on 3S1 

order  for  judgment  upon 382 

judgment  upon 383 

SUBPCENA  : 

to  witness 266 

with  duces  tecum  clause 266 

service  of.     (See  Affidavit,  Certificate,  Retwn) 264,  1401 

for  attendance  of  witnesses  before  commissioner  in  suit  pending  in 

foreign  State  or  country 304 

of  judge  or  justice  of  the  peace  in  foreign  suit,  when  no  commission 

ha.s  issued 305 

for  witness  in  proceedings  for  appointment  of  committee,  etc 1099 

in  surrogate's  court 1204 

proof  of  service  of 1216 

in  j  ustice's  court 1400 

certiticate  of  service  of.  . 1401 

SUBPCENA  TICKET  : 

form  of , , 26t> 

with  duces  tecum,  clause 267 

SUBSTITUTES  FOR  PERSONAL  SERVICE : 

(See  Affiiavit,  Notice,  Order,  Summ,ons) 62 

SUBSTITUTION  OF  PARTIES: 

(See  Affidavit,  Notice,  Order.) 254 

SUBSTITUTION  : 

of  attoi-neys 5 

SUMMARY  PROCEEDINGS  FOR  REAL  PROPERTY  : 

forms  in 1029 

(See  Affidavit,  Answer,  Cmaplaint,  Notice,  Order,  Petition,  Precept,  Re- 
turn, Undertaking,  Warrant) 

SUMMONS  : 

general  form  of,  in  courts  of  record 89 

list  of  forms  relat  ing  to  commencement  of  action ij^ 

in  justices'  courts 13/o 

proof    of   service    of,    generally.       (See    Affidavit,    Certificate, 

Return) '•'•J-^e.  47-r.l 

proof  of  service  of,  in  casw  <lc«enda(iL  evades  service 46 


1516  Index. 

SUM  MONS— ( Co«<i7t2ied) . 

notice  to  be  indorsed  upon,  and  served  with,  when  complaint  is  not 

served 40 

indorsement  on,  of  time  when  it  must  be  served 42 

affidavit  to  procure  order  for  service  of,  on  a  resident  who  cannot  be 

found 62 

order  upon  each  affidavit 63 

affidavit  of  plaintiff  or  his  attorney,  to  obtain  order  for  service  of,  by 

publication 64 

affidavit  of  search,  and  inquiry  for  defendant 6& 

order  for  service  of,  by  publication 66 

notice  to  defendant  to  accompany  summons  as  published 68 

notice  to  be  served  with   summons,  when   service   is   made    out  of 

State 68 

proof  of  puljlication  of  summons  and  notice 69 

affidavit  of  deposit  in  post-office,  pursuant  to  order 69 

of  service  on  defendant  without  the  State 69 

notice  to  defendant  of  entry  of  judgment,  in  case  of  service  by  pub- 
lication    70 

supplemental  summons 72 

to  attend  reference  to  appoint  receiver 212 

SUPPLEMENTAL  COMPLAINT  : 

notice  of  motion  for  leave  to  file 764 

affidavit  on  motion  for  such  leave 764 

order  granting  leave  to  serve 765 

in  creditor's  suit 766 

SUPPLEMENTAL  SUMMONS  : 

form  of 72 

SUPPLEMENTARY    PROCEEDINGS    TO    EXECUTION    AGAINST 
PROPERTY : 

forms  in 1178,  1200 

(See,  also.  Affidavit,  Notice,  Oath,  Order,  Referee's  Report,  Return,  Un- 
dertaking, Warrant.) 
SUPREME  COURT : 

removal  of  cause,  etc.,  from  county  court  to.   (See  Removal  of  Ca?ise).. 29-32 

SURETIES  : 

exception  to.     (See  Notice.) 196,  1394 

SURPLUS  MONEYS : 

(See  Affidavit,  Certificate,  Claim,  Notice,  Order,  Summons) 589-596 

SURROGATE : 

forms  relating  to  jurisdiction  of  court  and  authority  of 1204 

to  general  duties  and  disabilities  of 1205 

SURROGATES'  COURTS  : 

proceedings  in,  forms  of 1204 

relating  to  process  and  service  thereof,  appearance  and  joinder  of, 
issue,  and  miscellaneoua  regulations  of  practice  in 1208 


Index.  1517 

SURROGATES'  CO'nRTS~-{Co7itinued) . 

hearing,  including  trial  by  jury  and  reference 1216 

decrees  and  orders,  and  enforcement  thereof 1224 

appeals  from  decree  or  order  of 1228 

provisions  relating  generally  to  letters  and  executors,  etc 1233 

probate  of  wills  and  grant  of  letters  thereon 1244 

revocation  of  pi-obate 1272 

probate  of  heirship 1277 

grant  of  letters  of  administration 12S2 

temporary  administration 1289^ 

revocation  of  letters  testamentary  and  of  administration 1294 

foreign  wills  and  ancillaiy  letters      1 299 

aid,  supervision  and  control  of  executor  or  administrator 1303 

accounting  and  settlement  of  estate 1321 

disposition  of  tlecedent's  real  propei-ty  for  payment  of  debts,  etc ....  1333 

provisions  relating  to  testamentary  trustee 1349 

a  guardian 1356 

supervision  and  control  and  accounting  of  guardian 1371 

(See,  also.  Affidavit,  Appearance,  Certificate,  Citation,  Coiisent,  Decision, 
Decree,  Execution,  Order,  Notice,  Petition,  Return,  Referee's  Report, 
Bond,  Letters  Testamentary,  Letters  of  Administration,  Renunciation, 
Subpoena,    Undertaking,  Verification.) 

TENANT  FOR   LIFE  : 

of  real  property,  forms  in  proceeding  to  discover  death  of 1082 

TENDER  AND  OTHER  OFFERS  AND  REQUESTS  : 

forms  relating  to 223-226 

in  j  ustices'  courts 1423 

TERMS  OF  SALE  : 

of  real  property  under  judgment 628 

TESTAMENTARY  TRUSTEE. 

(See  Trustee.) 

TIME: 

extension  of,  for  proceeding  in  action 236-238 

TRANSCRIPT  : 

of  Buirogate's  decree  directing  payment  of  sum  of  money 1224 

of  justice's  judgment  for  recovery  of  money 1412 

for  recovery  of  chattel 1413 

TRANSFER  OF   ACTION  : 

pending  before  justice,  when  justice's  term  expires,  etc 1432 

TRANSFER  OF  INTEREST,  Etc.  : 

of  i)arty  to  action,  proceedings   on 229 

TOWN,  COUNTY  AND  MUNICIPAL  OFFICERS  : 

forms  in  actions  by  and  against W)8 


1518  Index 

TRIAL  : 

forms  relating  to.  (See  Affidavits,  Issues,  New  Trial,  Notices,  Orders).  310 

demand  of  defendant  for  change  of  place  of 312 

j  urors  for,  forms  relating  to 341 

TRUSTEE : 

testamentary,  proceedings  by  and  against 1350 

(See,  also,  Petition,  Citation,  Answer,  Decree.) 

UNDERTAKING  : 

(See,  also.  Bond.) 

forms  relating  to,  generally 247 

on  appeal, 

to  stay  proceedings  on,  from  j  udgment  or  order,  directing  pay- 
ment of  money 413 

in  fixed  installments 416 

to  stay  proceedings  on,  from  judgment  or  order  for  recovery  of 

a  chattel  or  assignment  or  delivery  of  property 417 

from  judgment  of  foreclosure  and  sale 417 

from  judgment  or  oi'der  for  the  possession  of  real  property,  etc..     418 

from  order  directing  payment  of  money,  with  stay 421 

on  arrest, 

on  procuring  order  for  arrest 125 

in  justices' courts 1383 

to  procure  discharge  from  arrest,  under  section  575,  Code  Civ. 

Pro 133,  134,     135 

on  attachment, 

on  granting  warrant  of  attachment 167 

on  attachment  of  goods  on  vessel  to  procure  delivery 176 

where  attached  property  is  claimed  by  third  person 178 

to  discharge  domestic  vessel  from 182 

by  plaintiff,  in  case  of  attachment  of  foreign  vessel,  to  prevent  its 

discharge 183 

of  defendant  to  obtain  possession  of  vessel,  after  discharge,  or 

vacating  of 186 

by  defendant,  on  application  to  discharge 194 

where  application  is  made  by  some,  but  not  all,  of  several 

defendants 195 

on   application   by  partner  for   discharge   of  partnership  property 

from 197 

on  application   for  judgment,  where  summons  is   served  by   pub- 
lication        361 

in  proceedings  for  contempt, 

to  procure  discharge 1069 

in  action  relating  to  decedent's  estate, 

required   from   legatee   before   issuing   execution  on  judgment 

against  executor 721 

in  action  upon  lost  negotiable  paper 865 

relating  to  execution, 

to  obtain  release  of  partnership  property  from  levy 453 


Index.  1519 

UNDERTAKING  —  {Continued). 

to  prevent  relinquishment  of  levy  upon  property  after  inquisi- 
tion by  sheriff's  j  ury 454 

to  supersede  warrant  issued  for  not  obeying  order  of  court,  to 
prevent  waste  466 

in  action  to  foreclose  lien  on  chattel, 

on  granting  warrant  in 662 

in  habeas  corpus  proceeding, 

on  issuing  habeas  corpus 947 

on  injunction  order, 

on  staying  trial  of  action  by 149 

on  staying  proceedings  in  action,  after  verdict,  etc.,  by 149 

on  procuring  order  to  pay  to  party  enjoined  an  amount  deposited 

in  court 151 

on  staying  proceedings  by,  after  verdict  in  ejectment  or  dower,     152 

complaint  in  suit  on  injunction  undertaking 157 

by  plaintiff,  on  modifying  or  vacating 161 

by  defendant,  on  modifying  or  vacating   161 

general  form,  in  action  or  legal  proceeding 248 

in  action  between  and  against  joint  debtors, 

in  partnership  action  on  application  by  members  of  firm  to  con- 
tinue business  pending  action 292 

injustices'  courts, 

on  application  for  order  of  arrest 1383 

on  granting  warrant  of  attachment 1387 

defendant's  undertaking  on  attachment 1389 

to  procure  replevin 1393 

to  obtain  return  of  chattel  replevied 1394 

on  interposing  answer  of  title 1 397 

upon  adjournment 1398 

to  procure  discharge  of  defendant  from   custody  on  adjourn- 
ment     1399 

to  stay  execution  upon  appeal  from  justice's  judgment 1420 

to  remove  action  to  Kings  County  court 1396 

on  appeal  from  final  order  in  proceedings  for  sale  of  animals  run- 
ning at  large,  etc 1431 

in  replevin, 

general  form  by  plaintiff 638 

on  part  of  defendant  to  obtain  retuni  of  chattel  replevied 641 

indemnifying  sheriff  on  claim  by  thinl  jierson 644 

in  summary  proceedings, 

to  effect  stay,  under  section  2254,  Code  Civ.  Pio 1049,   1050 

«n  appeal  from  final  order,  under  section  2262,  Code  Civ.  Pro.. .    1055 

in  surrogate's  court, 

on  aj)])eal  fioin  surrogate's  decree  or  order,  un(l<'r  sections  2677, 
2578,    Cod.!  Civ.  Pro 1230 

in  proceedings  supplementary  to  execution, 

of  judgment  debtor  to  obtain  his  discbarge  from  arrest 1185 

UNINCORPORATED  ASSOCIATION  : 

forms  in  action  by  or  against v 903 


1520  Index, 

usurper  of  office  or  franchise : 

action  against,  forms  relating  to 924 

VENIRE  IN  JUSTICE'S  COURT : 

form  of 1407 

constable's  return  to 1408 

■VENUE  : 

change  of. 312 

VERDICT: 

special,  clerk's  minutes  upon 347 

subject  to  opinion  of  court,  clerk's  minutes  upon 346 

judgment  upon 348 

in  action  to  recover  possession  of  real  property 500 

in  actiiin  for  a  chattel 653 

in  favor  of  party  answering  in  proceedings  for  sale  of  animals  run- 
ning at  large,  etc 1429 

VACATION  OF  LETTERS  PATENT: 

complaint  for 936 

VERIFICATION : 

of  pleading 105 

notice  to  treat  unverified  pleading  as  a  nullity 108 

of  account  furnished  on  demand,  by  party 109 

by  agent  or  attorney 109 

of  pleading  in  surrogate's  court 1216 

of  petition  in  surrogate's  court 1216 

of  pleading  in  justice's  court 1396 

(See  Affidavits,  Oaths.) 

VOLUNTARY  DISSOLUTION  OF  CORPORATION : 

forms  relating  to,  list  of 1170 

schedule  to  be  annexed  to  petition  for 1174 

(See,  also,  Notice,  Order,  Petition,  Referee^s  Report.) 

"WAIVER : 

of  security  on  appeal 400 

WARRANT : 

for  apprehension   of  witness  subpoenaed  pursuant  to  section  854, 

Code  Civ.  Pro 268 

of  attachment 168 

for  commitment  of  witness  for  failure  to  testify  in  cases  arising  under 

section  854,  Code  Civ.  Pro.. 269 

for  seizure  of  chattels  in  action  for  foreclosure  of  lien  upon 661 

on  failure  to  make  affidavit  on  return  of  order  to  show  cause  in 

action  against  usurper  of  office 932,  1 203 

search  for  books  and  papers  withheld 933,  1203 

of  attachment  for  not  obeying  writ  of  habeas  corpus  or  certiorari. . .  956 
of  commitment  for  not  obeying  writ  of  habeas  corpus  or  certiorari. .  956 
of  attachment  for  not  obeying  final  order  for   discharge   in   habeas 

corpus  proceedings 964 


Index.  1521 

WARRANT— ( Continued). 

in  habeas   corpus  proceedings  to  bring  up  prisoner  about  to  be  re- 
moved   f)64,  965 

to  dispossess  tenant,  etc.,  in  summary  proceedings 1047 

of  commitment  for  contempt  issued  without  notice 1060 

of  commitment  for  contempt 1075 

of  attachment  in  contempt  proceedings 1063 

for  collection  of  lines  imposed  by  court  of  record 1080 

for  arrest  of  judgment  debtor  in  proceedings   supplementary  to  exe- 
cution   1178 

upon  failure  to  comply  with  order  directing  undertaking  to  be  given 

in  same  proceedings 1186 

to  seize  property  withheld  from  executor,  etc 1309 

in  justice's  court : 

of  arrest  for  criminal  contempt 1374 

of  commitment  for  same 1376 

of  attachment  of  property 1386 

of  attachment  against  defaulting  witness 1401 

of  commitment  of  witness  for  refusing  to  be  sworn,  etc 1409 

for  sale  of  animals  seized  when   running  at  large   upon  high- 
way, etc 1428 

upon  final  order  upon  verdict  in  favor  of  party  answering  in 

same  proceedings 1429 

"WASTE: 

affidavit  to  obtain  order  to  prevent,  after  execution  sale 106,  463 

order  to  prevent 464 

affidavit  to  obtain  order  to  show  cause  why  party  should  not  be  pun- 
ished for  violation  cf  order 599 

order  to  show  cause  upon  above  affidavit 405 

warrant  to  sheriff  for 466 

undertaking  to  supersede  warrant 467 

order  superseding  wai-rant  and  discharging  wrongiloer  467 

proceedings  in  action  for.    (See  Complaint,  Order,  Affidavit,  Notice).  613 

WILL: 

proceedings  for  probate  of,  etc.     (See  Petition,  Citation,  etc.) 1245 

WITNESS : 

compelling  attendance  of,  forms  relating  to 272 

WRIT  OF  ASSESSMENT  OF  DAMAGES: 

form  of 9S2 

inquisition  upon 984 

list  of  forms  relating  to 9HI 

(See  Notice,  Oath,  Order,  Petition,  Return.) 

WRIT  OF  ASSIST  A  NCE: 

in  foreclosure  suit,  afliduvit  to  obtain 60S 

to  put  purchaser  in  possession , 607 


1522  Index, 

writ  of  certiorari : 

to  inquire  into  cause  of  detention 964 

to  supply  defect  in  record 989 

to  review 990 

list  of  forms  relating  to 988,  989 

(See  Affidavit,  Notice,  Order,  Itetum.) 

"WRIT  OF  HABEAS  CORPUS : 

to  testify 948 

affidavit  to  procure  same 949 

to  inquire  into  cause  of  detention 953 

return  to.     (See  Return.) 

in  contempt  proceedings 1070 

(See  AJJldavit,  Answer,  Notice,  Order,  Petition,  Precept,  Warrant.) 

WRIT  OF  INQUIRY : 

to  ascertain  damages  sustained  by  reason  of  injunction 155 

oath  to  jurors  on 156 

to  witness  on 156 

inquisition  pursuant  to 156 

sheriffs  return  to 157 

notice  to  sureties  on 155- 

general  form  of 355 

demand  by  defendant  for  notice  of  execution  of 357 

notice  of  execution  of 357 

WRIT  OF  MANDAMUS  : 

(See  Affidavit,  Demurrer,  Notice,  Order,  Return.) 

alternative  writ  of  mandamus 971 

writ  of  peremptory  mandamus 971 

list  of  forms  relating  to 969 

WRIT  OF  PROHIBITION : 

(See  Affidavit,  Notice,  Order,  Return.) 

alternative,  form  of 977 

absolute,  form  of  980 

list  of  forms  relating  to 976 

WRONGS : 

actions  to  recover  damages  for,  list  of  forms  relating  to 778 


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